                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                              Nos. 03-2956/3107
                                ___________

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, *
                                        *   Appeals from the United States
____________________                    *   District Court for the
                                        *   District of South Dakota.
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. *
                                    ___________

                              Submitted: June 14, 2004
                                 Filed: September 3, 2004
                                  ___________

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. 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

                                         -2-
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-

                                          -3-
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 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 again denied Wigg's request and explained that the Religion Policy
addressed situations in which SFSD allowed a church to lease space in the event that
the church was without–and in the process of constructing or finding–its own
facilities. SFSD noted that it included the provision in the Religion Policy to allow
SFSD personnel to attend church services if their church leased facilities from SFSD.

                                          -4-
SFSD reaffirmed its position that Wigg would violate the Religion Policy if she
participated in the Club's meetings.

       Wigg filed her complaint on February 20, 2003, alleging that SFSD's Religion
Policy violated her constitutional rights. The district court denied Wigg's request for
a preliminary injunction, and SFSD then filed a motion for summary judgment on
Wigg's motion for permanent injunction and declaratory judgment. SFSD later filed
motions to strike a demand for jury trial and to strike Wigg's errata sheet.

       On July 2, 2003, the district court issued its decision granting in part and
denying in part SFSD's motion for summary judgment as well as Wigg's claims for
permanent injunction and declaratory relief. The district court concluded that while
SFSD could constitutionally prohibit Wigg from participating in the Club at
Anderson Elementary, SFSD's prohibition against Wigg's participation in the Club
at other schools was unconstitutional. The district court granted SFSD's motions to
strike Wigg's demand for a jury trial and Wigg's errata sheet. The district court denied
SFSD's motion to stay the permanent injunction on August 22, 2003.

       SFSD timely appealed, arguing that while the district court correctly held that
SFSD could prohibit Wigg from participating in the Club at Anderson Elementary,
it erred in permanently enjoining SFSD from enforcing its policy prohibiting Wigg
from actively participating in the Club at other schools within the district. Wigg
timely cross-appealed, arguing that the district court correctly determined that Wigg
could participate in the Club at other schools within the district, but erred in ruling
that SFSD could prevent Wigg from participating in the Club at Anderson
Elementary.1

      1
         Wigg raised two additional issues in her cross-appeal regarding the district
court's striking her errata sheet and her claim for compensatory damages. SFSD also
claims in its appeal that it is immune from damages under South Dakota law. At oral
argument, Wigg's attorney notified the court that Wigg has abandoned these claims

                                          -5-
                                    II. Analysis
      Both Wigg and SFSD argue that the district court erred in deciding the
substantive First Amendment issues in this case. The arguments highlight the
considerable tension among the clauses of the First Amendment–particularly when
an issue arises in a public school setting. Does a school's concern for avoiding
accusations of establishment of religion justify inhibiting the free speech and
association rights of employees after work hours when the relevant activity takes
place on school property? In this case, we do not believe so.

       We review a grant of summary judgment de novo and apply the same standard
used by the district court. Callas Enterprises, Inc. v. Travelers Indem. Co. of America,
193 F.3d 952, 955 (8th Cir. 1999); First Bank of Marietta v. Hogge, 161 F.3d 506,
509 (8th Cir. 1998). Summary judgment is appropriate when the evidence, viewed in
a light most favorable to the non-moving party, demonstrates that there is no genuine
issue of material fact, and that the movant is entitled to judgment as a matter of law.
Id.

        We review a district court's issuance of a permanent injunction for an abuse of
discretion. Randolph v. Rodgers, 170 F.3d 850, 856 (8th Cir. 1999). An abuse of
discretion occurs if the district court reaches its conclusion by applying erroneous
legal principles or relying on clearly erroneous factual findings. Id. (citing Fogie v.
THORN Americas, Inc., 95 F.3d 645, 649 (8th Cir. 1996)). Where the district court
improvidently grants or denies a motion for summary judgment, the district court's
issuance of an injunction based on the summary judgment ruling is clearly erroneous.
Id. at 859.



on appeal. Therefore, we will not address Wigg's additional claims. In addition,
because Wigg abandoned her compensatory damages claim and her nominal damages
award totaled less that twenty dollars, SFSD's claim of sovereign immunity also must
fail pursuant to In re Young, 209 U.S. 123 (1908) and its progeny.

                                          -6-
       SFSD urges us to conclude that its Religion Policy prohibiting Wigg's or any
SFSD employee's participation in any religious-based organization having access to
SFSD property is justified by SFSD's Establishment Clause concerns.2 The posture
of this case suggests that we must answer whether the government's compelling
interest in avoiding an Establishment Clause violation would justify viewpoint
discrimination in a school setting. To date, the Supreme Court has rejected
Establishment Clause defenses in at least two free speech cases, Widmar v. Vincent,
454 U.S. 263 (1981), and Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508
U.S. 384 (1993). However, we, like the Court in Good News Club v. Milford Cent.
Sch., 533 U.S. 98 (2001), save this question for another day because we conclude
that, on these facts, SFSD has no valid Establishment Clause interest that justifies its
restriction of its employees' private speech. 533 U.S. at 112–113 (noting that while
Establishment Clause concerns may justify content-based discrimination, it is unclear
whether they would justify viewpoint-based discrimination).

      The First Amendment to the Federal Constitution provides that "Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech . . . ." The Fourteenth Amendment
imposes those substantive limitations on the legislative power of the States and their


      2
         We note that this case does not involve whether the Club may meet after
hours at the school. The United States Supreme Court in Good News Club v. Milford
Cent. Sch., 533 U.S. 98 (2001), established that when a public school system permits
after-hours access to its facilities by one non-school related group, it cannot refuse
access to another based on its religious nature, as that constitutes viewpoint
discrimination in violation of the Establishment Clause. Just as in Milford, here the
district court determined that SFSD's schools were limited public forums, thus
allowing SFSD to place some limitations on the types of organizations that can access
the facilities. However, Milford indicates that just as a school cannot endorse a
religious-based program, it also cannot discriminate against one if the program
qualifies as one permitted access pursuant to the school's access policy. SFSD agrees
that the Club qualifies for access.

                                          -7-
political subdivisions. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000)
(citations omitted).

       With few exceptions, the First Amendment prohibits governments from
infringing free speech rights in public forums.3 Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 45 (1983). The government has more discretion when
the speech forum established by the government is considered limited. Then, the
government is not required to allow persons to engage in every type of speech. The
government may reserve the forum for certain groups or discussion of certain topics,
but it must "abstain from regulating speech when the specific motivating ideology or
the opinion or perspective of the speaker is the rationale for the restriction."
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). A
viewpoint-discriminatory regulation is presumed to be unconstitutional. Id. at
828–829.

        "The principle that government may accommodate the free exercise of religion
does not supersede the fundamental limitations imposed by the Establishment Clause.
It is beyond dispute that, at a minimum, the Constitution guarantees that government
may not coerce anyone to support or participate in religion or its exercise, or
otherwise act in a way which 'establishes a [state] religion or religious faith, or tends
to do so.'" Lee v. Weisman, 505 U.S. 577, 587 (1992) (quoting Lynch v. Donnelly, 465
U.S. 668, 678 (1984)). However, "there is a crucial difference between government
speech endorsing religion, which the Establishment Clause forbids, and private
speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."
Bd. of Ed. of Westside Cmty. Sch. (Dist.66) v. Mergens, 496 U.S. 226, 250 (1990)
(opinion of O'Connor, J.). Of utmost importance in Establishment Clause inquiries

      3
        Traditional public forums include parks, streets, and sidewalks, which "have
immemorially been held in trust for the use of the public" and have been used "time
out of mind" for "purposes of assembly, communicating thoughts between citizens,
and discussing public questions." Perry Educ. Ass'n, 460 U.S. at 45 (citation omitted).

                                          -8-
is whether the government regulation is neutral towards religion. Rosenberger, 515
U.S. at 839. The "guarantee of neutrality is respected, not offended, when the
government, following neutral criteria and evenhanded policies, extends benefits to
recipients whose ideologies and viewpoints, including religious ones, are broad and
diverse." Id.

       SFSD argues that permitting its employees to participate in religious-based
programs held on school grounds would violate Establishment Clause principles
because it would appear that SFSD endorses a particular religion or religious activity.
However, SFSD's policy of prohibiting all employees–even on their own time–from
participating in any religious-based programs held on school grounds is an overly-
broad remedy. In an effort to avoid an establishment of religion, SFSD unnecessarily
limits the ability of its employees to engage in private religious speech on their own
time. Although SFSD allows access to the Club, SFSD impermissibly discriminates
by limiting those who can attend based upon the subject matter of the speech. As
such, SFSD's Religion Policy preventing SFSD employees from participating in
religious-based activities is viewpoint discriminatory and, thus, per se
unconstitutional. Rosenberger, 515 U.S. at 828–829.

        In support of its policy limiting SFSD employees from participating in
religious-based programs, SFSD argues that its Establishment Clause concern
constitutes a compelling reason to justify the restriction. However, Wigg asserts that
the Establishment Clause is not implicated because her participation constitutes
private or free speech outside the sphere of her employment and without the
imprimatur of SFSD. According to Wigg, "[s]he only wants access to the District
facilities after school, on her own time to participate in a religious meeting, just like
she and other employees may assemble for private secular meetings."

      We recently decided Doe v. The Sch. Dist. of the City of Norfolk, 340 F.3d 605
(8th Cir. 2003), dealing with Establishment Clause concerns in relation to a private

                                          -9-
speech issue. In Doe, a public high school student and parent filed a § 1983
Establishment Clause lawsuit against a school district, its superintendent, and a
school board member because the school board member, who was also a parent of a
graduating student, recited a prayer at the school-sponsored graduation despite
specific instructions prohibiting prayer at the ceremony. We found no Establishment
Clause violation after determining that the school board member was acting as a
private citizen when he recited the prayer although he gained access to the podium
due in part to his position on the school board. We particularly observed that the
parent's prayer was not state-sponsored and did not bear the "imprint of the
state"–although it occurred at a school-sponsored event–because he was not acting
in a representative capacity at that moment. Id. at 611 (citing Santa Fe Indep. Sch.
Dist., 530 U.S. at 305). We noted that the Supreme Court in Santa Fe, which
prohibited student-led prayer prior to school-sponsored sporting events, provided a
relevant inquiry asking "'whether an objective observer, acquainted with the text,
legislative history, and implementation of the statute, would perceive it as a state
endorsement of prayer in public schools.'" Doe, 340 F.3d at 612 (quoting Santa Fe
Indep. Sch. Dist., 530 U.S. at 308 (internal citations omitted)). The Court in Santa Fe
determined that an objective observer would perceive that the school sanctioned the
pre-game prayer. Utilizing this inquiry, we reached a contrary conclusion in Doe,
noting that the school specifically advised all graduation participants, including the
school-board-member parent, that prayer was not permitted during the ceremony and
that the parent's comments were clearly only his own.

        With the guidance of Doe and Santa Fe, we conclude that Wigg's participation
in the after-school Club constitutes private speech. Wigg's private speech does not put
SFSD at risk of violating the Establishment Clause: Wigg's speech did not occur
during a school-sponsored event;4 she did not affiliate her views with SFSD (Wigg's


      4
       Merely allowing an organization access to school property does not render the
meeting a state- or school-sponsored event. In Lamb's Chapel, for example, the

                                         -10-
counsel proposed a disclaimer explaining that any school district employees
participating in the Club were acting as private citizens and did not represent SFSD
in any manner); students participated in the meetings with parental consent; and
nonparticipating students–unless supervised–exited the building before the meetings
began. Under the inquiry provided in Santa Fe, no reasonable observer would
perceive Wigg's private speech as a state endorsement of religion by SFSD. SFSD's
desire to avoid the appearance of endorsing religion does not transform Wigg's
private religious speech into a state action in violation of the Establishment Clause.5
Even private speech occurring at school-related functions is constitutionally
protected, Chandler v. Siegelman, 230 F.3d 1313, 1317 (11th Cir. 2000); therefore



Supreme Court determined that Establishment Clause concerns did not arise in
allowing a group access after school hours to show a religious-themed movie. The
Court noted that because the property had been used by a wide variety of private
organizations, "there would have been no realistic danger that the community would
think that the District was endorsing religion or any particular creed, and any benefit
to religion or the Church would have been no more than incidental." Lamb's Chapel,
508 U.S. at 394; see also Widmar, 454 U.S. 263 (1981) (Establishment Clause not
violated by allowing religious clubs access to state university property for meetings).
Such is the case here in that merely allowing the Club to use SFSD property would
not rise to state sponsorship of the event.
      5
         SFSD urges us to apply the balancing test laid out in Pickering v. Bd. of Educ.
of Will County, Illinois, 391 U.S. 563 (1968), to uphold its restriction, as an employer,
over Wigg, as an employee. The Pickering line of cases recognizes that the
government employer has a "freer hand in regulating the speech of its employees than
it has in regulating the speech of the public at large." Waters v. Churchill, 511 U.S.
661, 671 (1994). Pickering also recognizes a public employee's right to speak on
matters that lie at the core of the First Amendment, that is, matters of public concern,
so long as the speech does not interfere with "the effective functioning of the public
employer's enterprise." Rankin v. McPherson, 483 U.S. 378, 388 (1987). While we
acknowledge Pickering's importance in work-place matters, we note that our holding
here does not implicate Pickering. The facts of this case do not show a connection
between Wigg's private speech and the functioning of the school.

                                          -11-
private speech occurring at non-school functions held on school grounds must
necessarily be afforded those same protections.

       While we are aware that school districts like SFSD must tread carefully in a
constitutional mine field of Establishment Clause, Free Speech Clause and Free
Exercise Clause concerns, we reiterate that Establishment Clause cases stress the
government's neutrality towards religion. Milford, 533 U.S. at 114 (citing
Rosenberger, 515 U.S. at 839). Wigg seeks nothing more than to be treated like other
private citizens who are allowed access to Club meetings. SFSD's policy permitting
participation by all interested parties–so long as they are not district employees–in
after-school, religious-based, non-school related activities violates that mandate of
neutrality. As such, we affirm the district court's order allowing Wigg to participate
in the Club at other SFSD school locations, but we reverse the court's decision
prohibiting Wigg from participating at Anderson Elementary.

COLLOTON, Circuit Judge, concurring.

       I concur in the opinion of the court, except for footnote 1. Ms. Wigg has
abandoned her claims on appeal that the district court erred by striking her errata
sheet and striking her claim for nominal damages. Therefore, I believe there is no
reason to consider SFSD's argument relating to immunity from damages under the
Eleventh Amendment, and I would express no view on whether SFSD is entitled to
such immunity, compare Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280-
81 (1977) (Based on consideration of Ohio law, Ohio school district not immune from
suit under Eleventh Amendment) with Belanger v. Madera Unified Sch. Dist., 963
F.2d 248, 254 (9th Cir. 1992) (California school district immune from suit under
Eleventh Amendment), or whether the Eleventh Amendment bars an award of
nominal damages. See Hopkins v. Saunders, 199 F.3d 968, 976-78 (8th Cir. 1999)
(nominal damages award of $1.00 foreclosed by Eleventh Amendment immunity and
qualified immunity).
                       ______________________________

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