                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-3225
                         ___________________________

                    Child Evangelism Fellowship of Minnesota

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                     Minneapolis Special School District No. 1

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                              Submitted: May 16, 2012
                               Filed: August 29, 2012
                                   ____________

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,

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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 (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.



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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,

                                          -4-
373 (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 (1992). The government may not regulate
speech when the specific ideology, opinion or perspective of the speaker is the
rationale for the restriction.1 Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460
U.S. 37, 46 (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


      1
        While it seems rather uncontroversial that the school has created what the
Supreme Court has dubbed a "limited public forum" in this case, see Milford, 533 U.S.
at 106; see also Victory Through Jesus Sports Ministry Found. v. Lee's Summit R-7
Sch. Dist., 640 F.3d 329, 334 (8th Cir.), cert. denied, 132 S. Ct. 592 (2011), because
the district's exclusion of CEF from the after-school program is viewpoint-based, there
is no need to analyze the nature of the forum of the after-school program, or the level
of scrutiny given to the restrictions in the various fora. Even in a nonpublic forum,
restrictions must be viewpoint neutral. Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc., 473 U.S. 788, 806 (1985) ("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 neutral.").

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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; Rosenberger v. Rector and Visitors of Univ. of Virginia, 515
U.S. 819, 829-30 (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.



       Milford was a reaffirmation of the Supreme Court's earlier precedents in Lamb's
Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1983), and
Rosenberger, 515 U.S. 819, in which it similarly rejected schools' attempts to justify
differential treatment of Christian and substantially similar secular groups. Lamb's
Chapel, 508 U.S. at 393-95; Rosenberger, 515 U.S. at 831. In Lamb's Chapel, the
school district determined that social, civic or recreational groups could meet in its
after-school forum, but prohibited use "by any group for religious purposes." 508
U.S. at 387. The school district accordingly denied access to a church that wanted to
present films teaching family values from a Christian perspective. The Court held that
the films dealt with "family values," a subject "otherwise permissible" under the
district's rules, so the exclusion of the church was unconstitutional viewpoint
discrimination. Id. at 393-94.

                                          -6-
       In Rosenberger, a student organization at the University of Virginia was denied
funding for printing expenses because its publication offered a Christian student
viewpoint. 515 U.S. at 826. Other secular student organizations were funded by the
university. The Court held that the denial of funding was unconstitutional because the
university "select[ed] for disfavored treatment those student journalistic efforts with
religious editorial viewpoints." Id. at 831. Importantly, the Court found that
impermissible viewpoint discrimination arises not merely from exclusion but also
from differential disfavored treatment. Id.

       The district court below found that the district's removal of CEF from the after-
school program was not viewpoint discrimination, partly because CEF was merely
accorded less favorable treatment than other groups, as opposed to being denied
access outright. And, the district court concluded that CEF could not prove
irreparable harm because it continues to enjoy the status of a community partner.
However, Rosenberger confirms that subjecting a religious organization to disfavored
treatment because of its religious viewpoint on an otherwise includible subject matter
is impermissible viewpoint discrimination, as is excluding the organization from a
speech forum altogether. Id.; see also Ladue, 28 F.3d at 1507.

        Moreover, Ladue is particularly hard to square with the district court's decision.
In Ladue we held that the school district's exclusion, pursuant to a written use-of-
premises policy, of a GNC from the 3:00 to 6:00 p.m. after-school program was
impermissible viewpoint discrimination because the program remained open to the
Boy Scouts and Girl Scouts. 28 F.3d at 1507. The GNC was allowed to use the
premises after 6:00 p.m. on weekdays and after 8 a.m. on the weekends, but due to the
later time slot, the GNC group's attendees could not take advantage of the late school
bus to return home. Id. at 1503. This particular fact makes Ladue compelling
precedent. Indeed, in Ladue, the school district did not bar the GNC from meeting at
the school altogether, it simply gave the GNC a disfavored position, making it much



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harder for the GNC to attract the after-school crowd, especially in relation to similar
secular groups such as the Boy and Girl Scouts.

        The district court in the instant case distinguished Ladue and Milford by noting
that in Milford, the Supreme Court found that the GNC meetings were not sponsored
by the school, and that the remedy sought in Milford was access to the premises,
whereas here, the district does allegedly sponsor the GNC meetings and CEF has
access to the premises, just not the resources of the after-school program. The district
court similarly distinguished Ladue by pointing out that the GNC in Ladue was
completely excluded from the premises (during the prime time slot) whereas CEF is
allowed on the premises at the same time as the other after-school groups, it is just
excluded from after-school program resources such as the snack and busing programs.
We find that any differences between Ladue and Milford and the instant case to be
without substantive distinction. Indeed, this is a relatively uncontroversial case of
viewpoint discrimination, and the only remaining question is whether the district was
justified in its chosen course of action.

      B.     Compelling Governmental Interest

       The district court also found that the district had a compelling interest in
excluding CEF from the after-school program resources in order to avoid an
Establishment Clause violation. This finding was driven by the district court's
conclusion that CEF'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. The compelling interest in avoiding an Establishment Clause
violation, according to the district, justifies any possible viewpoint discrimination.
We disagree.

     An abridgement of First Amendment speech rights must be justified by a
compelling governmental interest, and the government's interest in avoiding an

                                          -8-
Establishment Clause2 violation "'may be'" such an interest. Lamb's Chapel, 508 U.S.
at 394 (quoting Widmar v. Vincent, 454 U.S. 263, 271 (1981)). However, the
Supreme Court has made it clear that the Establishment Clause does not proscribe
"private religious conduct during nonschool hours merely because it takes place on
school premises." Milford, 533 U.S. at 115. Instead, the Establishment Clause
requires neutrality, as opposed to hostility, towards religion. Rosenberger, 515 U.S.
at 839. And as the Supreme Court has stated and restated, "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.; see also Milford, 533 U.S. at 114 (quoting the same
passage from Rosenberger).

       In balancing the various First Amendment clauses it is important to remember
that the Establishment Clause forbids "government speech" which endorses religion,
while the Free Speech and Free Exercise Clauses protect private speech endorsing
religion. Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556, 561 (8th Cir. 2009).
Accordingly, whether the content of CEF's GNC meetings was private speech or
school-sponsored speech is the key to analyzing the district's Establishment Clause
defense to its practice of viewpoint discrimination.

       We find erroneous the district court's conclusion that the GNC's message was
school or district sponsored when it was part of the after-school program. First, the
district policy on after-school programs states that participants are "non-school" and
non-district-sponsored organizations. The fact that participants in the after-school
program are given financial resources does not counsel us to look in the opposite
direction. In Rosenberger, the Court held that the speech at issue was not government

      2
        Because CEF is challenging a specific government action (expulsion from the
after-school club), rather than the specific policies of the district or the state statute,
the Lemon v. Kurtzman, 403 U.S. 602 (1971) test is not implicated. Roark v. S. Iron
R-1 Sch. Dist., 573 F.3d 556, 563 n.4 (8th Cir. 2009).

                                           -9-
(or school-sponsored) speech because the school provided resources and funding to
a diverse group of student organizations, each of which had provided a disclaimer
stating that its group was independent from the university. 515 U.S. at 823, 834-35.
Given these disclaimers and the existence of multiple student groups receiving
funding, the Court pointed out that the university had not fostered any impression that
the student groups spoke for the university, and instead the "University ha[d] taken
pains to disassociate itself from the private speech involved." Id. at 841. Likewise,
the district has chosen to provide funding for a variety of participants in the after-
school program, including CEF until its ouster in 2009, and has taken pains to
disassociate itself from the private speech of the groups involved.

       Further, the factual similarities between this case and Milford and Ladue
support the conclusion that CEF's GNC is not school sponsored, even when given the
after-school program resources. Like the GNCs in Milford and Ladue, the meetings
are held immediately after school at Jenny Lind Elementary, are open to any student
who obtains parental permission to attend, and the forum is available to other secular
community groups to foster character building activities. Other GNC cases lend
further support to the notion that CEF's activities were not school sponsored. In Wigg
v. Sioux Falls Sch. Dist. 49-5, 382 F.3d 807, 815 (8th Cir. 2004), we held that the
district could not prohibit one of its own teachers from leading an after school GNC
on the property of the school where she taught. Because the teacher's participation did
not occur during a "school-sponsored event" such as graduation3 or a sporting event
involving the school; because she did not affiliate her views with the school district;
and because students needed parental permission in order to attend while non-
participating students exited the building before the GNC began, we held that the
teacher was participating in private, not school-sponsored speech. Id.

      3
        However, we have held that a parent/school board member's prayer at his
daughter's graduation ceremony was not school sponsored because he was acting as
a private citizen and not in his official school-board capacity. Doe v. Sch. Dist. of the
City of Norfolk, 340 F.3d 605, 613 (8th Cir. 2003).

                                          -10-
        The record reflects that the organization, structure and activities of the various
GNCs around the country have not changed since the programs were litigated in
Milford nearly fifteen years ago. The Supreme Court and our court have both
consistently held that this type of speech is private speech, not school sponsored. See
Milford, 533 U.S. at 113; Wigg, 382 F.3d at 815; Ladue, 28 F.3d at 1509-10. Our
sister circuits have ruled similarly. E.g., Child Evangelism Fellowship of New Jersey,
Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 525 (3d Cir. 2004) (holding that the
purpose of the school's forum was not to convey its own message but to assist all
organizations in the community). Following this precedent, we hold that CEF's
meetings, even as part of the after-school program, are not school sponsored.

       All of the foregoing makes this case factually distinct from cases cited by the
district regarding school involvement in prayer at public events, Santa Fe Indep. Sch.
Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992), as well as
the student newspaper restrictions found constitutionally permissible in Hazelwood
Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). Given that the content of the GNC
meetings was not government speech, the school had no compelling interest in
avoiding an Establishment Clause violation, and there is no other basis upon which
it can justify its viewpoint discrimination.

III.   CONCLUSION

       The district court abused its discretion in denying the preliminary injunction.
CEF has a high likelihood of success on the merits of its First Amendment4 claim. The
likely First Amendment violation further means that the public interest and the
balance of harms (including irreparable harm to CEF) favor granting the injunction.




       4
     Because we find CEF has established a likelihood of success on its First
Amendment claim, we need not consider its Equal Protection claim.

                                          -11-
See Elrod, 427 U.S. at 373-74. We therefore reverse and remand to the district court
for further proceedings consistent with this opinion.
                       ______________________________




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