United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3576

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Straights and Gays for Equality * 

(SAGE); N.R. by Her Next Friend * 

and Parent S.R.; H.W. by Her Next * 

Friend and Parent M.W., * 

* 

Appellees, *

* Appeal from the United States 

v. * District Court for the 

* District of Minnesota. 

Osseo Area Schools - District No. 279; * 

Larry A. McGee, Member & * 

Chairperson of the School Board of * 

Osseo Schools - District 279, in his * 

individual and official capacities; * 

Dean G. Henke, Member & * 

Vice Chairperson of the School * 

Board of Osseo Area Schools - * 

District 279, in his individual and * 

official capacities; John L. Nelson, * 

Member & Clerk of the School * 

Board of Osseo Area Schools - * 

District 279, in his individual and * 

official capacities; Kim Green, * 

Member & Treasurer of the School * 

Board of Osseo Area Schools - * 

District 279, in her individual and * 

official capacities; Linda J. Etim, * 

Member & Director of the School * 

Board of Osseo Area Schools - * 

District 279, in her individual and * 

official capacities; Judith G. Peterzen, * 

Member & Director of the School * 
1

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota.

2

20 U.S.C. § 4071 (2000).

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Board of Osseo Area Schools - * 

District 279, in her individual and * 

official capacities; John O'Sulllivan, Jr., * 

Superintendent of Osseo Area Schools - * 

District 279, in his individual and * 

official capacities; Wendy Loberg, * 

Principal of Maple Grove Senior * 

High School, in her individual and * 

official capacities; Maple Grove Senior *

High School; Dr. James L. Smith, * 

former Interim Superintendent of * 

Osseo Area Schools - District 279, * 

in his individual capacity, *

* 

Appellants. *

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Submitted: June 9, 2008

Filed: August 29, 2008

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Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.

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SMITH, Circuit Judge.

The Osseo Area School District ("the School District"), Maple Grove High

School ("MGHS"), and various school board members and school staff (collectively

"the appellants") appeal from an order of the district court1

 granting partial summary

judgment to Straights and Gays for Equality, N.R., and H.W. (collectively "SAGE").

The district court granted SAGE summary judgment on its Equal Access Act (EAA)2
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claim and issued a permanent injunction that provides SAGE with the same access for

meetings, avenues of communication, and other miscellaneous rights that are afforded

to MGSH's student groups classified as "curricular." We affirm.

I. Background

The relevant background facts in this case are set out in our previous opinion,

in which we affirmed the district court's grant of a preliminary injunction on SAGE's

EAA claim. Straights and Gays for Equality (SAGE) v. Osseo Area Schools-Dist. No.

279, 471 F.3d 908 (8th Cir. 2006) ("SAGE I"). On remand, SAGE moved the district

court for partial summary judgment, seeking to make the preliminary injunction

permanent. It contended that the appellants' refusal to allow SAGE the same access

to school facilities and avenues of communication provided to other student groups

violated the EAA. The district court granted SAGE's summary judgment motion on

the EAA claim. The court concluded that the MGHS-designated "curricular" student

groups of cheerleading, synchronized swimming, Spirit Council, and Black Achievers

were actually noncurricular groups that received greater access than SAGE, in

violation of the EAA. Thus, the district court imposed "a permanent injunction that

accord[ed] SAGE the same access for meetings, avenues of communication, and other

miscellaneous rights [as those] afforded to MGHS's 'curricular' groups."

II. Discussion

"We review the district court's grant of injunctive relief for abuse of discretion."

F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir. 1997). The district court predicated the

injunction on its determination that certain student groups receiving more favorable

access than SAGE were noncurricular. We examine first whether this conclusion is

correct. See id. (stating that court of appeals could not determine whether district court

abused its discretion in issuing injunction without also determining if district court

erred, as a matter of law, in making its underlying determination). If the student

groups at issue were properly labeled as curricular, the district court necessarily

abused its discretion in issuing the injunction. Id. at 263 (stating that the district court
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"necessarily abused its discretion in issuing the injunction" if its underlying

determination was erroneous). Moreover, the district court issued the injunction after

granting SAGE's motion for partial summary judgment, which we review de novo. Id.

"[S]ummary judgment is proper if, after viewing the evidence in the light most

favorable to the nonmoving party, there exists no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law." Id.; see also Fed. R. Civ.

P. 56(c).

"Under the Equal Access Act, a public secondary school with a 'limited open

forum' is prohibited from discriminating against students who wish to conduct a

meeting within that forum on the basis of the 'religious, political, philosophical, or

other content of the speech at such meetings.'" Bd. of Educ. of the Westside Cmty. Sch.

v. Mergens, 496 U.S. 226, 235 (1990) (quoting 20 U.S.C. §§ 4071(a) and (b)).

Specifically, the EAA provides:

It shall be unlawful for any public secondary school which receives

Federal financial assistance and which has a limited open forum to deny

equal access or a fair opportunity to, or discriminate against, any

students who wish to conduct a meeting within that limited open forum

on the basis of the religious, political, philosophical, or other content of

the speech at such meetings. 

20 U.S.C. § 4071(a).

"A 'limited open forum' exists whenever a public secondary school 'grants an

offering to or opportunity for one or more noncurriculum related student groups to

meet on school premises during noninstructional time.'" Mergens, 496 U.S. at 235

(quoting 20 U.S.C. § 4071(b)). "Thus, a school's obligations under the EAA are

'triggered' even if the school only permits one noncurriculum group to meet. Once

triggered the EAA forbids a school from prohibiting other groups, based on the

content of their speech, from having 'equal access' to meet on school premises." SAGE
3

As we noted in SAGE I:

The appellants did not allege that SAGE's meetings could "materially

and substantially interfere with the orderly conduct of educational

activities with the school" or interfere with MGHS's ability to maintain

order and discipline at the school. Mergens, 496 U.S. at 241, 110 S. Ct.

2356 (internal quotations and citation omitted). Therefore, our analysis

is restricted to the issue of whether SAGE has equal access to the same

avenues of communication as other noncurriculum related groups.

471 F.3d at 912 n.4.

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I, 471 F.3d at 911 (quoting Mergens, 496 U.S. at 236). The appellants concede that

the EAA is applicable, as MGHS is a public secondary school that receives federal

financial assistance, and MGHS maintains a limited open forum under the EAA.

Here, MGHS does not prohibit SAGE from meeting at the school or utilizing

some avenues of communication, but it limits SAGE's access to communication

avenues and meeting times and places. Curricular groups receive more extensive use

of school communication avenues. Thus, the issue is not whether MGHS provides

SAGE access to some avenues of communication but whether it provides equal access

to available avenues of communication as provided to other noncurriculum related

groups. We hold that it does not.3

As we discussed in SAGE I:

A "curriculum related student group" is one that

directly relates to a school's curriculum if the subject

matter of the group is actually taught, or will soon be

taught, in a regularly offered course; if the subject matter

of the group concerns the body of courses as a whole; if

participation in the group is required for a particular
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course; or if participation in the group results in academic

credit.

[Mergens, 496 U.S.] at 239–40. The circle of groups considered

"curriculum related" has a relatively small circumference and does not

include "anything remotely related to abstract educational goals";

instead, the Court limited the definition of "curriculum related student

group" to support "Congress's intent to provide a low threshold for

triggering the Act's requirements." Id. at 244, 240.

For example, a French club is directly related to the school's

curriculum if the school teaches French in a regularly offered course or

plans to teach French in the foreseeable future. Id. at 240. Likewise, a

student government organization is directly related to the curriculum if

it addresses matters relating to the body of courses offered by the school.

Id. Also, both band and choir directly relate to the school's curriculum if

they are offered as part of the school's regular curriculum. Id. at 246.

In contrast, although the EAA does not define "noncurriculum

related student group," the Supreme Court has interpreted the phrase

broadly to mean "any student group that does not directly relate to the

body of courses offered by the school." Id. at 239 (emphasis in original).

"Whether a specific student group is a 'noncurriculum related student

group' will [ ] depend on a particular school's curriculum, but such

determinations [are] subject to factual findings well within the

competence of trial courts to make." Id. at 240. Additionally, courts must

look to the school's "actual practice rather than its stated policy" in

determining whether a student group is noncurriculum related. Id. at 246.

For example, a scuba-diving group is not directly related to the

school curriculum, even if swimming is taught as a physical education

class, when scuba diving is not taught in any regularly offered course at

the school and does not result in academic credit. Id. at 245. Also, a

chess club is a "noncurriculum related group" when no class requires

participation in the club and participation in the group does not result in

extra credit for a class. Id. Finally, a student service organization that

helps to enhance students' civic responsibilities to the community is not
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directly related to the curriculum where the subject matter of the group

is not taught in a class. Pope v. E. Brunswick Bd. of Educ., 12 F.3d 1244,

1253 (3d Cir. 1993) ("Here, the relevant subject matter of one unit of Mr.

Koenigsberg's History course is poverty and homelessness. The subject

matter of the Key Club is not poverty and homelessness, but

community-related service and fund-raising activities. The history course

and the Key Club accordingly have different subject matter.") (emphasis

in original).

SAGE I, 471 F.3d at 911–12.

In SAGE I we upheld the district court's issuance of the preliminary injunction,

finding that "cheerleading and synchronized swimming, like SAGE, are

noncurriculum related groups" and "conclu[ding] that SAGE [was] likely to prevail

on the merits of its EAA claim[.]" Id. at 913. The appellants challenge our previous

findings regarding the classification of the cheerleading and synchronized swimming

groups, asserting novel arguments that were not raised previously. We decline to

address those new arguments and need not address the appellants' arguments regarding

the Black Achievers student group. Rather, we conclude that the district court

correctly found that the Spirit Council was a noncurriculum related student group

mislabeled as a curriculum related group. The appellants thus violated the EAA by

providing the Spirit Council with greater access to communication avenues than it

provided to SAGE.

The School District contends that the Spirit Council is merely a subdivision of

the Crimson Cabinet, the school's curriculum-based student government group, and

"[a] school's student government w[ill] generally relate directly to the curriculum to

the extent that it addresses concerns, solicits opinions, and formulates proposals

pertaining to the body of courses offered by the school." Mergens, 496 U.S. at 240;

see also SAGE I, 471 F.3d at 911 ("[A] student government organization is directly
4

See Boyd County High School Gay Straight Alliance v. Bd. of Educ. of Boyd

County, 258 F. Supp. 2d 667, 687 (E.D. Ky. 2003) (ruling that school's executive

councils were noncurriculum related student groups, noting that under Mergens

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related to the curriculum if it addresses matters relating to the body of courses offered

by the school.").

Here, however, the undisputed facts demonstrate that the Spirit Council plans

student activities at MGHS such as Homecoming, Snow Daze, Spring Fling, Prom,

"and other events that foster a sense of positive school spirit and pride." These

activities do not address concerns, solicit opinions, nor formulate proposals pertaining

to the body of courses offered by MGHS. Mergens, 496 U.S. at 240. The Spirit

Council's responsibilities do not "address[] matters relating to the body of courses

offered by the school." SAGE I, 471 F.3d at 911. Thus, Spirit Council is not directly

related to the MGHS curriculum.

Portions of MGHS's student government may well be curriculum related under

Mergens. But, every student group placed as a subgroup of the student government

does not automatically also qualify as curriculum related. The EAA would be too

easily circumvented should merely placing favored groups within the rubric of student

government suffice to classify them as curriculum related. We note that Mergens

explained that a school's student government group "generally relate[s] directly to the

curriculum to the extent that it addresses concerns, solicits opinions, and formulates

proposals pertaining to the body of courses offered by the school." 496 U.S. at 240

(emphasis added). The record shows that the Spirit Council's function is social activity

planning. It does not address academic or curricular issues relating to the body of

courses offered at MGHS. We conclude that any curriculum-based qualities of

MGHS's student government do not extend to the Spirit Council. Therefore, the

district court's ruling that Spirit Council is noncurriculum based was correct, the grant

of summary judgment on SAGE's EAA claim was proper, and the issuance of the

permanent injunction was not an abuse of discretion.4
student government groups relate directly to curriculum only "to the extent it

addresses concerns, solicits opinions, and formulates proposals pertaining to the body

of courses offered by the school," and the stated purpose of the executive councils

included prom preparation, selecting class rings, and planning the senior trip, talent

show, and senior t-shirts).

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III. Conclusion

Accordingly, the judgment of the district court is affirmed.

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