Howard Friedman, Religion Clause
In Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1, (8th Cir., Aug. 29, 2011), the U.S. 8th Circuit Court of Appeals held that the district court abused its discretion in denying a preliminary injunction sought by plaintiff to keep its Good News Clubs as part of Minneapolis Jenny Lind Elementary School’s after school program. The court said:
We agree with CEF’s assertion that the district has engaged in viewpoint discrimination by ousting CEF from the after-school program…. [T]he primary difference between CEF and other groups participating in the after-school program, all of which provide the enrichment programming … is that “prayer and proselytizing” take place during CEF’s meetings….
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…. The compelling interest in avoiding an Establishment Clause violation, according to the district, justifies any possible viewpoint discrimination. We disagree….
… [W]hether 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.