382 F.3d 807 (8th Cir. 2004), 03-2956, Wigg v. Sioux Falls School Dist. 49-5

Docket Nº:03-2956, 03-3107.
Citation:382 F.3d 807
Party Name:Barbara WIGG, Appellee/Cross-Appellant, v. SIOUX FALLS SCHOOL DISTRICT 49-5; Dr. Jack Keegan, in his individual and official capacity as Superintendent of the Sioux Falls School District, Appellant/Cross-Appellee, National School Boards Association; American Association of School Administrators; Associated School Boards of South Dakota; Iowa Associ
Case Date:September 03, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 807

382 F.3d 807 (8th Cir. 2004)

Barbara WIGG, Appellee/Cross-Appellant,


SIOUX FALLS SCHOOL DISTRICT 49-5; Dr. Jack Keegan, in his individual and official capacity as Superintendent of the Sioux Falls School District, Appellant/Cross-Appellee,

National School Boards Association; American Association of School Administrators; Associated School Boards of South Dakota; Iowa Association of School Boards; Minnesota School Boards Association, Amici on Behalf of Appellant/Cross-Appellee,

The National Legal Foundation; Christian Educators Association International, Amici on Behalf of Appellee/Cross-Appellant.

No. 03-2956, 03-3107.

United States Court of Appeals, Eighth Circuit

September 3, 2004

Submitted: June 14, 2004.

Rehearing and Rehearing En Banc Denied Oct. 7, 2004.

Page 808

[Copyrighted Material Omitted]

Page 809

Counsel who presented argument on behalf of the appellant was Michael L. Luce of Sioux Falls, SD. Susan Brunick Simons, Sandra K. Hoglund and Dana Van Beek Palmer appeared on the brief.

Counsel who presented argument on behalf of the appellee was Mathew D. Staver of Longwood, FL. Erik W. Stanley, Joel L. Oster, Anita Staver, and Rena Lindevaldsen of Longwood, FL appeared on the brief.

Before SMITH, BEAM, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

Elementary teacher Barbara Wigg sued Sioux Falls School District 49-5 and Superintendent Dr. John Keegan (collectively referred to as "SFSD") to challenge SFSD's decision prohibiting her from participating in a Christian-based after-school program at schools in the school district.

Page 810

Wigg sought a preliminary injunction, a permanent injunction, declaratory relief, and damages claiming that SFSD's policy violated her First Amendment free speech rights. SFSD defended its decision on grounds that Wigg's participation would subject SFSD to First Amendment Establishment Clause liability. Initially, the district court denied the temporary-injunction motion; however, the court later granted Wigg a permanent injunction after concluding that Wigg could participate in the after-school program at schools in the district-other than the one in which she taught-without raising Establishment Clause concerns for SFSD. The district court also ruled that SFSD's Establishment Clause concerns allowed it to prohibit Wigg's participation in the after-school program at her present school. Both parties appeal. We affirm in part and reverse in part.

I. Background

Wigg, currently a second- and third-grade teacher at Laura B. Anderson Elementary School ("Anderson Elementary"), has worked in the school district at five different elementary schools since 1988. The staff at Anderson Elementary maintains regular hours each school day from 7:30 a.m. to 3:30 p.m. Some teachers, including Wigg, often arrive earlier than 7:30 a.m. and stay later than 3:30 p.m. Throughout her employment, Wigg has been active with children after school hours. For example, she has participated in after-school Girl Scouts and has taught private guitar and reading lessons.

The Good News Club ("the Club") is an after-school organization sponsored by Child Evangelism Fellowship. To participate in the Club, a child must provide a signed permission slip from a parent. According to the Club's literature, its purpose is to "evangelize boys and girls with the Gospel of the Lord Jesus Christ and establish (disciple) them in the Word of God and in the local church for Christian living."

SFSD maintains two pertinent policy provisions. First, SFSD follows a "Community Use of School Facilities" Policy (Use Policy) that allows both school-sponsored and student-initiated groups, as well as community organizations such as churches, non-profit organizations, and non-sectarian youth groups, to use its facilities. The purpose of the Use Policy is to foster community involvement. SFSD requires only that applicants verify that they are non-profit organizations and that they have liability insurance. Second, SFSD maintains a "Religion in the Schools and at School Activities" Policy (Religion Policy) that prohibits all SFSD personnel from participating in religious activities on school grounds or at school-sponsored activities. The prohibition, however, does not apply when the organization has leased the facility according to the lease provision in the Use Policy. SFSD interprets this lease provision to apply only to temporary leases to a church seeking a permanent location.

In October 2002, the Club requested access to SFSD's facilities to hold its meetings. SFSD granted the request, and the Club currently meets at five elementary schools within SFSD, including Anderson Elementary. The Club meets at Anderson Elementary from 3:00 p.m. to 4:00 p.m. at the end of the school day. Wigg attended the Club's first meeting in Anderson Elementary's library on December 15, 2002. Nine students attended that meeting, including some from Wigg's combined second-and third-grade class. At the meeting, the students played a game, learned a Bible verse, and heard a Christian story.

After the meeting, a staff member questioned whether Wigg could teach religion

Page 811

in the building. Noting staff use of the library at the end of the workday, the staff member expressed her concern to Anderson Elementary Principal Mary Peterson over Wigg teaching the Club in the library. Subsequently, Peterson informed Wigg that she could not participate in the Club meetings (which were held on school grounds) because of SFSD's concern that her participation in the organization might be perceived as an establishment of religion. Since that time, Wigg has not participated in the Club's meetings in any school within the district.

Following her exchange with Peterson, Wigg sent a letter to Dr. Keegan asking for permission to participate in the Club. She informed Dr. Keegan that the Club requires every participating student to obtain a parental permission slip. The letter also suggested language for a disclaimer that would explain that any school district employees participating in the Club were acting as private citizens and did not represent SFSD in any manner. On January 17, 2003, SFSD affirmed its decision not to permit Wigg to participate because the school feared that allowing Wigg to participate in the Club would present Establishment Clause issues for SFSD.

Wigg sent a second letter to SFSD on January 28, 2003, again asking that SFSD allow her to participate in the Club's meetings. She based her request on SFSD's Religion Policy. She claimed in the letter that SFSD should allow her to participate in the meetings if the Club leased its facilities in accordance with the Use Policy. SFSD...

To continue reading