                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 07-3576
                                  ___________

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          *
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.                   *
                                    ___________

                             Submitted: June 9, 2008
                                Filed: August 29, 2008
                                 ___________

Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.
                           ___________

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


      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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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

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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


      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.

                                         -5-
       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


                                   -6-
      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



                                         -7-
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

      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

                                          -8-
                                III. Conclusion
      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




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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