Federal appellate court rules Minnesota district violated religious group’s free speech rights by removing it from district’s enrichment program
Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No.1, No. 11-3225 (8th Cir. Aug. 29, 2012)
Abstract: A three-judge panel for the U.S. Court of Appeals for the Eighth Circuit (AR, IA, MN, MO, ND, NE, SD) has ruled that a Minnesota school district violated a religious group’s free speech rights when it engaged in impermissible viewpoint discrimination by removing the religious group as a participant in the district’s after-school enrichment program, resulting in irreparable harm to the religious group.
The panel rejected the school district’s argument that it had a compelling interest, i.e., avoiding an Establishment Clause violation, that justified removing the religious group from its enrichment program, because the panel found the religious group was engaged in private speech.
Facts/Issues: Child Evangelism Fellowship of Minnesota (CEF-MN), the local chapter of a religious organization, conducts weekly “Good News Clubs” (GNC) for children ages 5-12 typically on public school campuses. CEF-MN holds GNC meetings after school, which include Bible lessons, creative learning activities, prayer, songs, and similar activities. In 2000, CEF-MN obtained a permit from Minneapolis Special School District No. 1 (MSSD1), which granted it access to facilities at Jenny Lind Elementary School (JLES) to hold GNC meetings. This permit also gave CEF-MN access to MSSD1′s literature distribution forum. CEF-MN’s flyers contained a disclaimer that MSSD1 did not sponsor or endorse CEF-MN’s activity.
During the 2005-2006 school year, MSSD1 changed or formalized the way it screened groups using its facilities for after-school activities. A group seeking access had to apply to become a “Community Partner” (CP), which would then give the CP access to MSSD1′s facilities and the flyer distribution system. A subset of these CPs are asked to be part of MSSD1′s “after-school enrichment program.” These enrichment programs, by statute, must be designed to encourage social, mental, physical and creative abilities, promote leadership development and improve academic performance. Districts having enrichment programs must also employ a “site coordinator” who coordinates the enrichment program, and decides which CPs will be invited to participate in the enrichment program at a particular school.
CEF-MN became a CP in 2005 and also became a member of MSSD1′s after-school enrichment program, until the 2008-09 school year. That year, JLES hired a new site coordinator, who became concerned about “prayer and proselytizing” occurring at the GNC meetings. Due to these concerns, CEF-MN was ultimately informed that it would be removed from the enrichment program effective in the 2009-10 school year. CEF-MN still had access to school facilities for meetings as a CP, but in being removed from the enrichment program, it no longer had access to transportation and food services from MSSD1 for its participants. Over the next two years, attendance at CEF-MN meetings decreased greatly.
CEF-MN filed suit, seeking injunctive and declaratory relief on the basis that MSSD1′s removal of CEF-MN from the enrichment program violated CEF-MN’s free speech and equal protection rights under the First and Fourteenth Amendments. The district court denied CEF-MN’s motion for a preliminary injunction, concluding that it was not likely to prevail in its claim that MSSD1′s actions constituted impermissible viewpoint discrimination under the First Amendment. The district court also found that the CPs participating in the enrichment program engaged in school-sponsored speech subject to the restrictions of the Establishment Clause. Lastly, the district court found that because CEF-MN was still able to utilize the premises as a CP, it could not establish irreparable harm. CEF-MN appealed the district court’s ruling.
Ruling/Rationale: The Eighth Circuit panel reversed the lower court’s decision denying the injunction, finding that MSSD1 did engage in impermissible viewpoint discrimination by removing it from continued participation in the enrichment program; MSSD1 could not establish a compelling interest for doing so; CEF-MN’s programming was not school- or district-sponsored speech; and CEF-MN’s demonstrated loss of attendance was enough to establish irreparable harm. Finding CEF-MN had established a likelihood of success on its First Amendment claim, the panel did not consider its Equal Protection Claim.
The panel’s discussion focused on whether CEF-MN was likely to succeed on the merits of its First Amendment claim. The panel agreed with CEF-MN that MSSD1 had engaged in viewpoint discrimination when it removed CEF-MN from the enrichment program. The panel said that MSSD1 “nearly concede[d] the issue, as its briefing and oral argument are replete with references to the fact that the primary difference between CEF and other [CPs] in the [enrichment] program … is that ‘prayer and proselytizing’ take place during CEF’s meetings.”
The panel rejected the district court’s attempt to distinguish the U.S. Supreme Court’s decision in Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001), which held that Milford had engaged in impermissible viewpoint discrimination by denying GNC access to school facilities for club meetings based on GNC’s religious viewpoint. The panel stated that U.S. Supreme Court precedent made clear that “impermissible viewpoint discrimination arises not merely from exclusion but also from differential disfavored treatment.” The panel also found that the district court’s decision could not be reconciled with the Eighth Circuit’s decision in Good News/Good Sports Club v. School District of the City of Ladue, 28 F.3d 1501 (8th Cir. 1994). Because the GNC in Ladue was subjected to disfavored treatment, not unlike that accorded to CEF-MN, the panel found Ladue “compelling precedent.”
On the question of whether MSSD1 was justified in excluding CEF-MN from the enrichment program, the panel looked to see if MSSD1 could identify a compelling government interest. The panel disagreed with the district court’s finding that MSSD1′s compelling interest was to avoid an Establishment Clause violation, and rejected the district court’s conclusion that CEF-MN’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.” While the panel acknowledged that avoiding an Establishment Clause violation could serve as such an interest, it emphasized that the Establishment Clause “does not proscribe ‘private religious conduct during nonschool hours merely because it takes place on school premises.’”
Thus, the panel found that the crucial question in determining whether MSSD1′s viewpoint discrimination was justified, was whether the content of CEF-MN’s GNC’s meetings was private speech or school-sponsored speech. The panel identified that MSSD1′s policy on after-school programs states that participants are “non-school” and non-district-sponsored organizations. It also pointed out that even though MSSD1 has provided funding for a number of participants in the after-school program, including CEF-MN until its 2009 ouster, MSSD1 has “painstakingly disassociated itself from any of CEF-MN’s private speech.” The panel, therefore, concluded that “[g]iven that the content of the GNC meetings was not government speech, [MSSD1] had no compelling interest in avoiding an Establishment Clause violation, and there is no other basis upon which it can justify its viewpoint discrimination.”
Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No.1, No. 11-3225 (8th Cir. Aug. 29, 2012)
[Editor's Note: In October 2011, Legal Clips summarized the district court's decision in CEF-MN v. MSSD1 , which denied CEF-Mn's motion for a preliminary injunction that would have required MSSD1 to grant it the same additional benefits it provided to other participants in its after school program. The court determined that MSSD1 had created a limited designated public forum when it had set up its after school program, which allowed it to restrict access to the forum provided the restrictions were reasonable and viewpoint neutral.]
