Wigg v. Sioux Falls School District 49-5

SMITH, Circuit Judge.

Elementary Barbara Wigg teacher sued Falls Sioux School District 49-5 and Su- Dr. perintendent Keegan John (collectively “SFSD”) referred to as to challenge decision prohibiting her from par- ticipating in a Christian-based after-school program schools school district. Christ the Lord Jesus Gospel of injunction, preliminary sought in the Word them (disciple) relief, establish declaratory injunction, permanent for Christian church in the local God policy claiming that SFSD’s damages living.” free First Amendment her violated its decision defended

rights. SFSD policy pertinent maintains two participation First, a “Com- follows provisions. Estab- Amendment First subject Facilities” munity Use School dis- Initially, the liability. school-spon- lishment Clause (Use both Policy) that allows temporary-injunction denied trict court as well groups, student-initiated sored granted however, court later motion; as such community organizations after con- injunction permanent a and Wigg churches, organizations, non-profit in the participate could Wigg facil- cluding to use its youth groups, non-sectarian in the dis- schools at is to program after-school of the Use purpose The ities. she in which the one re- than community involvement. SFSD trict-other foster they raising verify Establishment taught-without only that applicants quires they The district SFSD. and non-profit organizations concerns Clause are Second, Establish- that SFSD’s liability ruled court also insurance. have at it to prohib- allowed in the Schools “Religion concerns a ment Clause maintains Policy) in after-school Policy (Religion participation Activities” Wigg’s it School par- personnel school. Both present her all SFSD prohibits at program activities on in and reverse in part affirm аppeal. ties ac- school-sponsored or at part. in school however, does prohibition, The tivities. Background I. has leased organization when the apply provision according to the lease facility third- currently a second- Wigg, interprets Policy. SFSD Use Ele- B. Anderson at Laura grade teacher temporary only to apply provision lease (“Anderson Elementary”), mentary Schoоl seeking permanent to a church leases five at in the school district has worked location. since 1988. elementary schools different requested main- Elementary the Club at Anderson October The staff meet- day hours hold each access to SFSD’s facilities regular tains teachers, in- request, and granted p.m. to 3:30 Some ings. 7:30 a.m. elementary 7:30 currently earlier than at five often arrive meets cluding Wigg, Club SFSD, Anderson p.m. than 3:30 stay including later a.m. schools within has meets Anderson employment, Wigg Elementary. The Club at Throughout her p.m. after school to 4:00 Elementary p.m. children from 3:00 active with been attended participated day. Wigg has example, she of the school hours. For the end taught Ele- meeting and has Scouts first Anderson Girl the Club’s after-school 15, 2002. reading library lessons. on December mentary’s private guitar meeting, in- students attended Nine Club”) (“the is an Club The Good News sec- Wigg’s combined cluding some from sponsored organization after-school meet- At the third-grade class. ond-and Fellowship. To partici- Evangelism Child learned a game, ing, played the students Club, provide a child must pate in the story. verse, and heard Christian Bible Ac- slip parent. from a signed permission ques- member meeting, a staff literature, pur- After the Club’s cording to religion Wigg could teach whether girls with tionеd boys “evangelize pose building. staff use of the sonnel to attend church Noting in the services if their workday, library at the end of the the staff church leased facilities from SFSD. SFSD expressed her concern member position reaffirmed its that Wigg would Elementary Principal Mary Pe- Anderson violate if Religion Policy participat- she Wigg teaching over the Club in the terson ed in meetings. the Club’s library. Subsequently, Peterson informed Wigg comрlaint February filed her that she could not alleging Religion (which meetings held on school were Policy violated her constitutional rights. concern that grounds) because of SFSD’s Wigg’s district court denied request organization participation might her injunction, for a preliminary and SFSD perceived be as an of reli- establishment then filed a summary motion for judgment time, Wigg par- Since that has not gion. on Wigg’s permanent injunction motion for meetings any ticipated Club’s and declaratory judgment. SFSD later within the district. jury filed motions to demand for strike Peterson, Following her exchange trial and to strike errata sheet. Keegan sent a asking letter to Dr. in permission participate for to the Club. July On the district court issued that Keegan informed Dr. the Club She part its decision in in granting denying every participating student to requires ob- part SFSD’s for summary judg- motion parental permission slip. tain a The letter ment as well as Wigg’s perma- claims suggested for a language also disclaimer injunction nent declaratory relief. any would explain that that school district The district court concluded that while participating in the Club employees were constitutionally prohibit SFSD could Wigg and did not acting rep- citizens from participating in the Club at Anderson any January SFSD in manner. On resent Elementary, prohibition against SFSD’s 17, 2003, SFSD affirmed its decision not to Wigg’s in participation' the at other Club Wigg to permit participate because the schools was The unconstitutional. district allowing Wigg partici- feared that to school granted court SFSD’s motions to strike pate in the Club present Establish- Wigg’s jury trial Wigg’s demand for a Clause issues for SFSD. errata sheet. district court denied stay motion the permanent in- Wigg sent second letter SFSD on junctiоn August January 28, again asking that SFSD participate allow her to in the Club’s meet- timely appealed, arguing SFSD

ings. request She based her on SFSD’s correctly that the court while district held Policy. in Religion She claimed the letter Wigg that from prohibit par SFSD could should her to participate SFSD allow in ticipating the Anderson Club Elemen meetings- in if leased the the Club its facili- tary, enjoining it in permanently erred Policy. in accordancе ties Use enforcing policy prohibiting SFSD from again request SFSD denied actively participating in the Religion Policy explained ad- Club at other schools within the district. in dressed situations which SFSD allowed cross-appealed, Wigg timely arguing a church to in the space lease event that correctly the district court determined process the church was without-and Wigg could at other constructing or own finding-its facilitiеs. district, provision noted that it schools within the but erred SFSD included Religion ruling prevent Wigg allow per- SFSD could fact, enti- Ele- material the movant is at Anderson the Club Id. mentary.1 judgment tled as matter of law. review a court’s issu district ‍​​​​‌‌​​‌‌​​​‌‌‌​​​‌‌‌‌​‌​‌​‌​‌‌‌​​​‌​​‌​​​‌​‌‌‌‍Analysis II. injunction ance for an permanent argue that Both and SFSD Rodgers, Randolph abuse of discretion. deciding the sub- district court erred (8th Cir.1999). An F.3d in this First Amendment issues stantive if the abuse of discretion occurs district highlight consid- arguments case. The by applying court reaches conclusion the clauses of the among erable tension relying on legal principles erroneous or Amendment-particularly when an is- First (cit clearly factual Id. findings. erroneous in a Does setting. arises sue Americas, Inc., ing Fogie v. THORN avoiding concern for accusations a school’s (8th Cir.1996)). F.3d Where the religion justify inhibit- of establishment of or de improvidently grants district court rights ing the free and association summary judgment, nies motion for hours employees after work when injunction an district court’s issuance of place on activity relevant takes summary ruling judgment based on the case, do property? not believe clearly Id. erroneous. at 859. so. Reli- urges us to conclude that its grant summary

We review gion any Policy prohibiting Wigg’s apply judgment de novo and the same any reli- employee’s participation used the district court. Cal standard gious-based organization having access to Enterprises, las Inc. v. Travelers Indem. (8th justified by Es- 952, property is America, F.3d 955 Co. 193 of The Cir.1999); pos- tablishment Clause concerns.2 First Bank Marietta v. of (8th Cir.1998). suggests ture 506, of this case that we must 161 Hogge, F.3d 509 government’s compel- answer whether Summary judgment appropriate is when evidence, ling avoiding light in a interest an Establishment viewed mоst favor party, justify viewpoint would non-moving able to demon Clause violation genuine setting. that is no of discrimination in a strates there issue To 98, 2093, Wigg U.S. raised two additional issues in her 121 S.Ct. 150 L.Ed.2d 151 cross-appeal regarding (2001), the district court’s public established that when a striking her errata sheet and her claim for system permits access to its facili after-hours compensatory damages. SFSD also claims group, ties it can one nоn-school related appeal damages that its it is immune from not access to on refuse another based argument, under South law. At oral Dakota nature, religious viewpoint that constitutes Wigg's attorney court notified the that discrimination in the Establish violation of appeal. has abandoned these claims on Milford, Just as Clause. here the Therefore, Wigg's we will not address addi- district court determined that SFSD’s schоols addition, tional claims. because forums, allowing were limited thus compensatory damages abandoned her claim place types SFSD to some on the limitations damages and her less nominal award totaled organizations of can access facilities. dollars, twenty SFSD's claim sover- of However, just as indicates that Milford eign immunity pursuant also must fail to In re religious-based pro school cannоt endorse 123, 441, Young, 209 28 S.Ct. U.S. 52 L.Ed. gram, against also cannot it discriminate one (1908) progeny. 714 and its program qualifies permitted if ac as one 2. We does pursuant policy. note that this case not involve cess to the school's access may whether the after at the Club meet hours agrees qualifies ac that the for Club Supreme school. The United States Court in cess. Sch., News Good Club v. Cent. 533 Milford

813 date, every of rejected engage type speech. Court has Es Supreme The government may defenses in at least two the forum Clause reserve for tablishment Vincent, cases, 454 speech Widmar v. certain or groups top free discussion certain 269, ics, 440 102 S.Ct. 70 L.Ed.2d it must U.S. but “abstain regulating (1981), Chapel v. Morich and Lamb’s Ctr. specific motivating when the ideolo 384, 113 Union Free Sch. gy opinion es or perspective or (1993). 2141, 124 How L.Ed.2d S.Ct. speaker is the rationаle for the restric ever, we, Court News like the Good Rosenberger tion.” v. Rector Visitors Sch., Cent. U.S. 819, 829, 115 of Va., 515 Univ. U.S. Milford (2001), 121 S.Ct. 150 L.Ed.2d 151 A 132 L.Ed.2d 700 view question day another because save point-discriminatory regulation pre is 828-829, that, facts, these has we conclude on to be Id. at sumed unconstitutional. no valid ‍​​​​‌‌​​‌‌​​​‌‌‌​​​‌‌‌‌​‌​‌​‌​‌‌‌​​​‌​​‌​​​‌​‌‌‌‍Establishment Clause interest S.Ct. 2510. justifies employ restriction of its principle government “The 112-113, speech. ees’ may accommodate the exercise of free reli (noting 121 S.Ct. 2093 that while Estab gion supersede does not the fundamental may justify con lishment Clause concerns imposed by limitations the Establishment discrimination, it unclear tent-based that, beyond dispute Clause. It is at a viewpoint- they justify whether minimum, guarantees the Constitution discrimination). based government may anyone sup coerce The First Amendment to the Federal or port religion or its exer shall prоvides “Congress Constitution cise, way or otherwise act in a which ‘es respecting make no law an establishment or religion [state] tablishes religion, prohibiting or the free exercise ” faith, or tends to do so.’ Lee v. Weis thereof; abridging the freedom man, 577, 587, 2649, 120 ” speech .... Fourteenth Amendment (1992) (quoting Lynch v. Don imposes those substantive limitations nelly, 465 U.S. legislative power the States (1984)). However, L.Ed.2d 604 “there is a political their Fe In subdivisions. Santa government crucial difference between Doe, 290, 301, dep. Sch. Dist. v. 530 U.S. speech endorsing religion, which the Es (2000) 2266, 147 L.Ed.2d 295 forbids, private Clause tablishment (citations omitted). speech endorsing religion, which the Free exceptions, Speech pro few the First and Free Exercise Clauses

With prohibits governments Cmty. from tect.” Bd. Ed. Sch. Amendment Westside of of (Dist.66) infringing speech rights public Mergens, free in for 496 U.S. (1990) 2356, 110 Perry Perry ums.3 Educ. Ass’n v. Local J.). Ass’n, O’Connоr, (opinion Educators’ 460 U.S. of Of utmost im in portance inquiries 74 L.Ed.2d 794 Establishment Clause S.Ct. regulation government government has more discretion when the is whether the is Rosenberger, forum speech govern religion. established neutral towards Then, gov ment is limited. at 2510. The considered S.Ct. required respected, persons “guarantee neutrality ernment is not to allow of ‍​​​​‌‌​​‌‌​​​‌‌‌​​​‌‌‌‌​‌​‌​‌​‌‌‌​​​‌​​‌​​​‌​‌‌‌‍is not assembly, parks, "purposes 3. Traditional forums include mind” for of communi- streets, sidewalks, citizens, thoughts cating which “have immemo- between discuss- Ass’n, rially ing public questions.” Perry been trust for the of the Educ. held in use (citation omitted). public" and been used out U.S. at 103 S.Ct. 948 have "time of offended, following recently Doe v. The Sch. government, We decided when Norfolk, 340 F.3d 605 City Dist. policies, evenhanded neutral criteria and of (8th Cir.2003), dealing with Establishment recipients whose ideol- extends benefits in relation to a Clausе concerns including religious ogies viewpoints, Doe, a public high issue. In ones, are and diverse.” Id. broad §a parent filed 1983 Estab student against a school lishment Clause lawsuit permitting argues SFSD district, its and a school superintendent, religious-based employees member the school board board because grounds would programs held on member, parent gradu who was also of a be principles violate Clausе Establishment student, at ating prayer recited appear cause it endorses would SFSD school-sponsored graduation despite spe activity. particular religion prayer at the prohibiting cific instructions However, all policy prohibiting SFSD’s ceremony. found no Establishment their time-from employees-even on own determining Clause violation after that the any religious-based pro participating in аcting pri school board member was overly- an grams held on school prayer citizen he recited vate when an remedy. broad In an to avoid effort although gained podium he access to the religion, unneces establishment SFSD in part position due to his on the school sarily ability employees limits particularly that the board. We observed their engage private religious speech on parent’s prayer state-sponsored was not time. Although own SFSD allows access “imprint and did not bear the of the state” Club, impermissibly to the SFSD discrimi although it occurred at a school-sponsored by limiting nates those who can attend acting rep event-because he was upon subject based matter resentative at that Id. capacity moment. such, speech. Religion As (citing Indep. at 611 Fe Sch. Santa preventing employees partici 2266). 305, 120 at S.Ct. We noted pating religious-based activities is view Supreme Fe, Court Santa and, thus, point discriminatory un per se prohibited prayer student-led prior which Rosenberger, constitutional. events, school-sponsored sporting pro 828-829, 115 “ inquiry asking vided a relevant ‘whether support policy limiting of its observer, objective acquainted an with the employees religious- text, legislative history, and implementa based that its Es- programs, argues statute, perceive tion of the it as a tablishment concern constitutes a Clause prayer in public state endorsement ” compelling justify reason to the restriction. Doe, at (quoting schools.’ 340 F.3d 612 However, Wigg the Establish- asserts that Fe at Indep. Santa Sch. 530 U.S. implicated ment her Clause is not because (internal 308, 120 S.Ct. 2266 citations omit participation or frеe private ted)). constitutes The Court in Santa Fe determined speech employ- sphere outside the of her objective that an perceive observer would the imprimatur and without that the pre-game school sanctioned the only SFSD. According Wigg, “[s]he prayer. Utilizing inquiry, we reached Doe, wants after access to the District facilities contrary noting conclusion school, on time to in a her own specifically gradua the school advised all just and other meeting, including like she participants, tion the school- employees may secu- private parent, prayer assemble for board-member was not lar meetings.” permitted during ceremony

815 parent’s clearly only comments were into a state action in violation of the Es tablishment private his own. Clause.5 Even speech occurring at school-related functions is guidance With the of Doe and constitutionally protected, Chandler v. Sie Fe, Santa we conclude that partic (11th gelman, 1313, 230 F.3d 1317 Cir. ipation in the after-school Club constitutes 2000); therefore private speech occurring private speech. Wigg’s private speech at non-school functions held on school put at violating does SFSD risk of necessarily must be afforded Wigg’s sрeech Establishment Clause: did those protections. ‍​​​​‌‌​​‌‌​​​‌‌‌​​​‌‌‌‌​‌​‌​‌​‌‌‌​​​‌​​‌​​​‌​‌‌‌‍same during school-sponsored not occur While are aware that school districts event;4 she did not affiliate her views with like carefully SFSD must tread in a consti- (Wigg’s proposed counsel a dis tutional mine field of Establishment explaining any claimer school district Clause, Speech Free Clause and Ex- Free employees participating in the Club were concerns, ercise Clause we reiterate that acting private rep citizens and did not Establishment Clause cases gov- stress the manner); resent in any students ernment’s neutrality religion. towards participated meetings parental with 114, Milford, 533 U.S. at 121 S.Ct. 2093 consent; nonparticipating students- (citing Rosenberger, 839, at U.S. supervised-exited unless the building be 2510). nothing seeks more meetings began. fore the in Under the than to be treated private like other citi- Fe, quiry provided in Santa no reasonable zens who are allowed access to Club meet- observer perceive Wigg’s would private ings. policy permitting partic- speech as a religion state endorsement of ipation by all parties-so interested long as by ap SFSD. SFSD’s desire to avoid the they are not employees-in district after- pearance of endorsing religion school, does not religious-based, non-school related transform Wigg’s private religious speech activities violates that mandate of neutrali- Illinois, 563, Merely allowing organization 1731, County, an access to 391 U.S. 88 S.Ct. property meeting (1968), does not render the uphold 20 L.Ed.2d its restric- school-sponsored state- or event. In Lamb's tion, employer, Wigg, as an over as an em- Chapel, example, Supreme Court de- plоyee. Pickering recognizes line cases termined that Establishment Clause concerns government employer that the has a "freer allowing group did not arise in access after regulating speech employees hand in of its religious-themed school hours to show a mov- regulating than it has in ie. proper- The Court noted that because the Churchill, public large.” at Waters v. ty by variety had been used a wide 1878, U.S. 114 S.Ct. 128 L.Ed.2d organizations, "there would have been no re- (1994). Pickering recognizes pub- also danger community alistic employee's right speak lic on matters that endorsing religion think that the District was Amendment, is, lie at the core of the First creed, any particular any benefit to concern, long matters of so as the religion or the Church would have been no speech does not interfere “the effective Chapеl, more than incidental.” Lamb’s functioning public employer’s enter- 394, 2141; Widmar, 113 S.Ct. see also McPherson, prise.” Rankin v. 70 L.Ed.2d 440 97 L.Ed.2d 315 (1981) (Establishment Clause not violated acknowledge Pickering’s importance While we allowing religious clubs access to state uni- matters, work-place we note that our hold- versity property meetings). Such is the ing implicate Pickering. here does not merely allowing case here in that the Club to facts this сase do property not show connection use SFSD would not rise state sponsorship Wigg's of the between event. and the func- tioning of the school. urges apply balancing 5. SFSD us to test Pickering laid out in v. Bd. Educ. Will court’s the district such, affirm we ty. As Appellee, BAKER, Lynn Rita in the Plaintiff - allowing

order locations, but school at other SFSD v. prohibiting decision court’s reverse the CO., Defendant- & MORRELL JOHN Ele- at Anderson Appellant. mentary. No. 03-2680. Apрeals, States Court United concurring. COLLOTON, Judge, Circuit Eighth Circuit. court, opinion I concur April 2004. Submitted: Wigg has aban- 1. Ms. footnote except for 3, Sept. ‍​​​​‌‌​​‌‌​​​‌‌‌​​​‌‌‌‌​‌​‌​‌​‌‌‌​​​‌​​‌​​​‌​‌‌‌‍Filed: that the dis- appeal on claims doned her En Banc Rehearing Rehearing striking her errata by erred trict court 29, 2004. Denied Oct. nominal claim for striking her sheet and no Therefore, I there is believe damages. argument relat-

reason to consider damages under the immunity

ing Amendment, I would ex-

Eleventh is entitled no view on whether

press Healthy Mt. immunity, compare

to such Doyle, City Bd. Educ. (1977)

280-81, law,

(Based of Ohio Ohio consideration under from suit district not immune Amendment) Belanger v.

Eleventh 963 F.2d Sch.

Madera Unified (9th Cir.1992) (California dis- under Eleventh from suit

trict immune

Amendment), the Eleventh or whether of nominal an award

Amendment bars Saunders, 199 Hopkins v.

damages. See Cir.1999) (nominal (8th

F.3d 976-78 foreclosed award of

damages $1.00 quali- immunity and

Eleventh Amendment immunity).

fied

Case Details

Case Name: Wigg v. Sioux Falls School District 49-5

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 3, 2004

Citation: 382 F.3d 807

Docket Number: 03-2956, 03-3107

Court Abbreviation: 8th Cir.