Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1

• Decision Date: 29 August 2012
• Docket Number: No. 11–3225.,11–3225.
• Parties: CHILD EVANGELISM FELLOWSHIP OF MINNESOTA, Plaintiff–Appellant v. MINNEAPOLIS SPECIAL SCHOOL DISTRICT NO. 1, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

690 F.3d 996

283 Ed. Law Rep. 695

CHILD EVANGELISM FELLOWSHIP OF MINNESOTA, Plaintiff–Appellant

v.MINNEAPOLIS SPECIAL SCHOOL DISTRICT NO. 1, Defendant–Appellee.

No. 11–3225.

United States Court of Appeals,

Eighth Circuit.

Submitted: May 16, 2012.

Filed: Aug. 29, 2012.

Matthew D. Staver, argued, Orlando, FL, Stephen M. Crampton, Mary E. McAlister, Lynchburg, VA, Anita L. Staver, Orlando, FL, on the brief, for appellant.

Michael John Vanselow, argued, Marie L. van Uitert, on the brief, Minneapolis, MN, for appellee.

Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.

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 after-school 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, each district must employ a “site coordinator” whose job it is to coordinate the after-school 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, 121 S.Ct. 2093, 150 L.Ed.2d 151 (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. 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, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (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, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). The government may not regulate speech when the specific ideology, opinion or perspective of the speaker is the rationale for the restriction.¹Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (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 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, 121 S.Ct. 2093;Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 829–30, 115 S.Ct. 2510, 132 L.Ed.2d 700 (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, ...