                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1942
                                   ___________

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
                                           *   District Court for the
      v.                                   *   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; Dr. James L. Smith,  *
former Interim Superintendent of          *
Osseo Area Schools - District 279,        *
in his individual capacity; Maple         *
Grove Senior High School,                 *
                                          *
             Appellants.                  *
                                     ___________

                               Submitted: October 16, 2006
                                  Filed: December 22, 2006
                                   ___________

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

SMITH, Circuit Judge.

       The Osseo Area School District ("School District"), Maple Grove Senior High
School ("MGSH"), and various school board members and school staff (collectively
referred to as "appellants") appeal from an order of the district court granting the
Straights and Gays for Equality ("SAGE"), N.R., and H.W.'s (collectively referred to
as"appellees") motion for a preliminary injunction. The district court1 granted
appellees' motion for a preliminary injunction on their Equal Access Act (EAA) claim
and ordered appellants to grant SAGE the same access for meetings, avenues of

      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

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communication, and other miscellaneous rights afforded to groups referred to as
"curricular." We affirm.

                                     I. Background
      SAGE, an unincorporated association of students enrolled at MGSH, was
formed to "promote tolerance and respect for [MGSH] students and faculty through
education and activities relevant to gay, lesbian, bisexual, and transgender ("GLBT")
individuals and their allies." N.R. and H.W. are students at MGSH and members of
SAGE.2

        MGSH, a high school within the School District, recognizes approximately 60
student groups, including SAGE. MGSH classifies student groups as either
"curricular" or "noncurricular" under the Student Group Framework ("Framework").
The Framework defines "curricular" groups as those "[r]elated to the school's
curriculum" and sponsored by the school. Curricular groups are allowed to
"communicate via PA [public address system], Yearbook, scrolling screen" and "use
other avenues of communication." They may also participate in "[f]undraising or field
trips at principal [sic] discretion." Groups classified as "curricular" include, inter alia,
cheerleading and synchronized swimming.3

       The Framework defines "noncurricular groups" as those "[n]ot related to the
school's curriculum" and not sponsored by the school. The school limits noncurricular
groups's communication avenues. They may only announce meetings by placing

       2
        N.R. and H.W. graduated from MGSH in spring 2006.
       3
       Other groups classified as "curricular" are: Student Government, which
includes the Crimson Cabinet, Crimson Council, Diversity Council, Service Council,
and Spirit Council; Asian Culture Leadership Group; Black Allies; Native American
Group; Gays, Lesbians, Bisexuals, Transgender, Questioning and Allies; Students
Against Destructive Decisions; National Honor Society; Dance Team; gymnastics;
and track and field.

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posters on a community bulletin board and outside their meeting places. They are
prohibited from making announcements on the PA, in the yearbook, on the scrolling
screen, or by other avenues of communication. They also may not fundraise or take
field trips. The Framework classifies nine groups as "noncurricular," including SAGE.

      Appellees filed suit against appellants seeking a preliminary injunction under
42 U.S.C. § 1983. Appellees contended that appellants were violating the EAA by
affording certain noncurricular groups designated as curricular student groups, such
as cheerleading and synchronized swimming, with greater access to school facilities
and communication options than noncurricular groups such as SAGE.

       The district court granted appellees' motion for a preliminary injunction,
determining that (1) appellees were likely to prevail in their argument that, like SAGE,
cheerleading and synchronized swimming are noncurriculum related groups but
afforded greater rights than SAGE; (2) appellees were entitled to a presumption of
irreparable harm; (3) the balance of harm favors granting injunctive relief; and (4) the
public interest will be served by enforcing appellees' rights under the EAA.

                                    II. Discussion
       On appeal, appellants argue that the district court abused its discretion in
issuing the preliminary injunction because the district court (1) failed to consider the
physical education curriculum adopted by the school board in deciding that appellees
were likely to succeed on the merits of their EAA claim and (2) erroneously found that
appellees would suffer irreparable harm because appellees are not foreclosed from all
avenues of communication.

       On appeal from a district court's grant of a preliminary injunction, we review
the district court's legal conclusions de novo and its ultimate determination to issue
the injunction for an abuse of discretion. McCreary County v. ACLU, ___U.S.___, 125
S. Ct. 2722, 2737 (2005).

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       In determining whether to issue a preliminary injunction, the district court
considers (1) the likelihood that the movant will succeed on the merits; (2) the threat
of irreparable harm to the movant; (3) the balance between the harm to the movant and
the harm to the other party; and (4) the public interest. Dataphase Sys., Inc. v. C.L.
Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). The principal factors at issue in the
present case are the likelihood of appellees' success on the merits and the threat of
irreparable harm to appellees.

              A. Likelihood of Success on the Merits on the EAA Claim
       The EAA prohibits public secondary schools with a "limited open forum" from
discriminating against students desiring to hold meetings on the basis of political,
religious, philosophical, or other content of the speech. Bd. of Educ. of the Westside
Cmty. Sch. v. Mergens, 496 U.S. 226, 235 (1990) (citing 20 U.S.C. §§ 4071(a), (b)).
A public secondary school creates a "limited open forum" whenever it "'grants an
offering to or opportunity for one or more noncurriculum related student groups to
meet on school premises during noninstructional time.'" Id. (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. Id. at 236.

      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 course; or
      if participation in the group results in academic credit.

Id. at 239–40. The circle of groups considered "curriculum related" has a relatively
small circumference and does not include "anything remotely related to abstract

                                          -5-
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 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

                                           -6-
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).

      Here, MGSH does not prohibit SAGE from meeting at the school or utilizing
some avenues of communication; however, the issue is not whether SAGE has access
to some avenues of communication but whether it has equal access to the same
avenues of communication as other noncurriculum related groups. We hold that it
does not.4

      First, no regularly offered course at MGSH teaches or will teach the subject
matter of cheerleading or synchronized swimming. With regard to cheerleading, the
"subject matter" of cheerleading is dance, gymnastics, jumps, and stunts, which are
performed for the purpose of creating team spirit at athletic contests. While the MGSH
Registration Handbook does list "Body Control" as a "theme" for its physical
education classes—which includes dance, gymnastics, and tumbling—none of the
offered courses listed in the Handbook, as in Pope, actually teach all of the subject
matter performed in cheerleading. Likewise, although synchronized swimming
involves both swimming and gymnastics, which are listed under the "Body Control"
theme and "Fitness" theme in the Handbook, it is not taught in a regularly offered
course at MGSH.




      4
       Appellants have not alleged that SAGE's meetings could "materially and
substantially interfere with the orderly conduct of educational activities within the
school" or interfere with MGSH's ability to maintain order and discipline at the
school. Mergens, 496 U.S. at 241 (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.

                                         -7-
      Second, cheerleading and synchronized swimming do not concern the body of
courses as a whole. Unlike a student government organization, neither the
cheerleading squad nor the synchronized swimming team address concerns or
formulate proposals relating to the body of courses as a whole at MGSH.

      Finally, participation in cheerleading or synchronized swimming does not result
in academic credit and is not required for a particular course.

       Because cheerleading and synchronized swimming, like SAGE, are
noncurriculum related groups, SAGE is entitled to the same avenues of
communication as those groups. Our conclusion that SAGE is likely to prevail on the
merits of its EAA claim, however, does not mean that MGSH "can never close a
limited open forum once such a forum has been created." Pope, 12 F.3d at 1254.
MGSH is "free to wipe out all of its noncurriculum related student groups and totally
close its forum." Id. Furthermore, our holding does not prevent MGSH from
legitimately categorizing cheerleading, synchronized swimming, and any other
athletic groups as "curriculum related" by granting physical education academic credit
to students who participate in such groups.

                                  B. Irreparable Harm
       SAGE is also entitled to a presumption of irreparable harm. The EAA protects
free speech rights and expressive liberties. Hsu v. Roslyn Union Free Sch. Dist. No.
3, 85 F.3d 839, 872 (2d Cir. 1996). "'[T]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.'" Id.
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). "[T]he same presumption of
irreparable harm arises in the case of violations of the Equal Access Act because it
protects 'expressive liberties.'" Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d
1135, 1149 (C.D. Cal. 2000); see also Boyd County High Sch. Gay Straight Alliance
v. Bd. of Educ. of Boyd County, 258 F. Supp. 2d 667, 692 (E.D. Ky. 2003) ("This



                                         -8-
same presumption of irreparable harm has been applied in cases of violations of the
Equal Access Act because it protects 'expressive liberties.'").

       Here, although MGSH has afforded students the opportunity to hold SAGE
meetings in school classrooms and place posters on a community bulletin board and
outside the meeting place, they have not, like student members of cheerleading and
synchronized swimming, been allowed to communicate via the PA, yearbook, and
scrolling screen. Additionally, the students have been prohibited from holding
fundraising events or having field trips. Therefore, the student members of SAGE are
entitled to a presumption of irreparable harm, as they will not be able to exercise their
rights absent a preliminary injunction.

                                 III. Conclusion
      Accordingly, we affirm the district court's grant of a preliminary injunction.
                     ______________________________




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