Good News/Good Sports Club v. School Dist. of City of Ladue

Decision Date29 September 1994
Docket NumberNo. 93-2148,93-2148
Citation28 F.3d 1501
Parties, 92 Ed. Law Rep. 1148 The GOOD NEWS/GOOD SPORTS CLUB, an unincorporated association; Jordan Heimburger, a minor, by his next friend L. Corbett Heimburger; Christopher Hirt, a minor, by his next friend Peggy Hirt; David Hirt, a minor, by his next friend Peggy Hirt; Comfort Ibe, a minor, by her next friend Afocha Ngozi Ibe; Peggy Hirt; John Hirt; Susan Mallory; George Mallory; Larry Tychsen; Dawn Huffman; Gabor Csengody; Afocha Ngozi Ibe; Kathryn Heimburger; L. Corbett Heimburger, Appellants, v. SCHOOL DISTRICT, OF the CITY OF LADUE, a public corporation; Barbara Sacks; Charles H. Cobaugh; Joyce Follman; Robert Minkler; Ann Boon; Charles McKenna, Appellees. Center for Law and Religious Freedom, Amicus Curiae, American Jewish Congress; Americans United for Separation of Church and State, Amici Curiae.
CourtU.S. Court of Appeals — Eighth Circuit

Carl H. Esbeck, Columbia, MO, argued (Timothy Belz, St. Louis, MO, on the brief), for appellants.

Robert G. McClintock, St. Louis, MO, argued (John Gianoulakis and Robert A. Useted, on the brief), for appellees.

Before MAGILL, Circuit Judge, BRIGHT, Senior Circuit Judge, and BEAM, Circuit Judge.

MAGILL, Circuit Judge.

The Good News/Good Sports Club (the Club) and individuals affiliated with the Club 1 appeal the district court's judgment denying their challenge to the use-of-premises policy (Amended Use Policy) of the School District of the City of Ladue, Missouri (School District) that closes the School District's facilities between 3 and 6 p.m. on school days to all community groups except for the Scouts 2 and athletic groups. The Amended Use Policy also contains a proviso that prohibits the Scouts from engaging in any religious speech from 3 to 6 p.m. Because the Amended Use Policy results in viewpoint discrimination that does not serve a compelling governmental interest, we reverse the judgment of the district court.


The Club is a community-based, non-affiliated group that seeks to foster the moral development of junior high school students from the perspective of Christian religious values. Club advertisements state that the Club is not sponsored by the School District. Parent volunteers run the Club meetings. The Club is open to junior high school students regardless of their race, creed, denomination, or sex. The Club does require, however, parental consent before a student may attend a meeting. Club activities include skits, singing (including Christian songs), role playing, Bible reading, prayer, and speeches by community role models. The Club is religious, but non-denominational.

The Club first met at the Ladue Junior High School in late 1988 and continued to meet through Spring 1992. During the 1991-92 school year, the Club's meetings took place on the first Monday of each month from 3 to 3:55 p.m. The timing of the meetings was convenient to Club members and their parents because the students could take the late bus home. In total, the Club met eight times during the 1991-92 school year.

In February 1992, several residents of the School District attended a school board meeting and complained about the religious content of the Club's meetings. The school board asked its attorney to evaluate the present use policy (1986 Use Policy) in response to the complaints against the Club. In late March, the school board passed a resolution allowing the Club to continue meeting for the remainder of the year. In July, the school board adopted the Amended Use Policy that closed the School District to all community groups, except the Scouts and athletic groups, between 3 and 6 p.m. on school days. The policy stated that:

Permission for use of school facilities after instructional time ends on school days will be granted to Community Groups: (1) for use of District's athletic facilities, provided that the use is limited exclusively to athletic activities; and (2) for meetings of Scouts (Girl, Boy, Cub, Tiger Cub, and Brownies), provided that such meetings shall be limited exclusively to the scout program and shall not include any speech or activity involving religion or religious beliefs.

Dist.Ct.Op., at 6. The exemption for the Scouts was based on the School District's "long-standing tradition of cooperation with scout programs." Id. at 10-11. The Amended Use Policy excluded the Club from meeting at its regularly scheduled time, but allowed the Club access to school facilities after 6 p.m. on school days, and after 8 a.m. on weekends. The Club filed suit in district court, seeking injunctive and declaratory relief based on its First Amendment rights.

After a bench trial, the district court returned a judgment in favor of the School District. The district court found that the School District's facilities constituted a non-public forum between 3 and 6 p.m. on school days. The district court also concluded that the long-standing relationship between the Scouts and the School District was a reasonable basis upon which to allow the Scouts to meet between 3 and 6 p.m. on school days and that the school board's concern over the possibility of an Establishment Clause violation was a reasonable consideration for excluding the Club under the Amended Use Policy. Finally, the district court determined that the Amended Use Policy did not discriminate on the basis of viewpoint. 3


The Club raises numerous grounds for reversal; we need consider only one: whether the Amended Use Policy results in impermissible viewpoint discrimination as described in Lamb's Chapel v. Center Moriches Union Free School District, --- U.S. ----, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). We hold that the Amended Use Policy results in viewpoint discrimination against the Club that does not serve a compelling governmental interest, and therefore, we reverse.

The School District's argument in opposition to the Club's viewpoint discrimination claim is three-fold. First, the School District argues that the Club waived the issue of viewpoint discrimination on appeal because it did not raise it at trial. Second, the School District argues that the district court properly held that its reason for adoption of the Amended Use Policy was reasonable and did not constitute viewpoint discrimination. Finally, the School District argues that if the Amended Use Policy results in viewpoint discrimination, that discrimination serves the compelling governmental interest of not violating the Establishment Clause.

A. Waiver of Viewpoint Discrimination

The School District first argues that the Club never raised the viewpoint discrimination argument; rather, the School District characterizes the Club's argument as limited to a "limited public forum" argument in which the Club and the Scouts were similarly situated. The School District argues that the Club cannot raise this new argument on appeal. We disagree.

First, the Club did present the viewpoint discrimination argument to the district court. After the bench trial, in its post-trial brief, the Club reiterated its four theories of recovery. The Club's third theory, based solely on the Free Speech Clause, claimed that the School District

acted with unconstitutional motive so as to frustrate or make more difficult the meetings of religious organizations (in particular, the Club). The law does not require that the Defendants' motives have been malicious or hateful to be unconstitutional, only that they intended to cause the meetings of religious groups to be excluded from access between 3 and 6 p.m.

Club's Post-Trial Br., Doc. 60, at 2-3. Amicus for the Club added further specificity to the Club's free speech claim by arguing the issue of viewpoint discrimination to the district court. Amicus Br., Doc. 46, at 13 & n. 11 ("Amicus believes that the school district has created a designated forum.... However, we will focus on the protections that the First Amendment affords speech, even in a nonpublic forum."). To be sure, the Club's principal argument stressed that the School District had created a limited public forum, and that the Club and the Scouts were similarly situated. The Club's arguments, however, were not limited to that sole basis. See Club's Post-Trial Br., Doc. 60, at 10 n. 16 (stating that the Club has standing to raise its own rights with respect to viewpoint discrimination); Club's Br. in Support of Preliminary Injunctive Relief, Doc. 12, at 7 ("View-point [sic] discrimination has never been permitted in any of the three fora."). The Club raised the issue that adoption of the Amended Use Policy was based on an unconstitutional motive that violated the Free Speech Clause, i.e., viewpoint discrimination.

Second, the School District's defense to the Club's free speech claim was that the Amended Use Policy created a non-public forum, not a limited public forum. An analysis of a governmental policy that limits speech in a non-public forum requires an inquiry into whether the policy is reasonable and viewpoint neutral. See Lamb's Chapel, --- U.S. at ----, 113 S.Ct. at 2147; Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985) (remanding to district court for a determination of whether non-public forum policy was viewpoint neutral); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 49, 103 S.Ct. 948, 957, 74 L.Ed.2d 794 (1983). The School District was aware that the Constitution places restrictions on government exclusion of speech even in a non-public forum. In particular, the School District alerted the district court to the then-current standard in its post-trial brief by stating: " '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...

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