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Donovan v. Punxsutawney Area School Board

July 15, 2003


Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 02-CV-205) District Judge: The Honorable Donetta W. Ambrose

Before: Rendell, Smith and Aldisert, Circuit Judges

The opinion of the court was delivered by: Aldisert, Circuit Judge.


Argued: May 14, 2003


Former Punxsutawney Area High School student Melissa Donovan appeals from an adverse decision concluding that the Equal Access Act did not entitle her to convene a Bible club during her school's morning "activity period" — a time during which other noncurriculum related student groups met. Specifically, she appeals from the District Court's denial of her motion for a preliminary injunction and the court's simultaneous determination that the "activity period" did not qualify as "non-instructional time" under the Equal Access Act, 20 U.S.C. § 4071 et seq., such that the EAA's limited open forum mandates were not triggered. She also contends that the District Court incorrectly concluded that the First Amendment's Establishment Clause prohibits the Bible club from meeting during the activity period.

Because Donovan has graduated pending this review,*fn1 we conclude that her request for injunctive and declaratory relief is moot, but that her claims for damages and attorney's fees remain viable. Accordingly, as part of deciding whether the EAA requires that Punxsutawney Area High School allow the Bible club to meet during the activity period, we must determine, in particular, whether "non-instructional time" encompasses the activity period at issue so as to trigger the EAA. We conclude that it does. We also conclude that PAHS has engaged in impermissible viewpoint discrimination under the First Amendment and that speculative Establishment Clause concerns do not justify PAHS's preventing the Bible club from meeting during the activity period.



Punxsutawney Area High School (PAHS) is a Punxsutawney Area School District public secondary school that receives federal financial assistance. Following a 10-minute homeroom period each day from 8:05 a.m. to 8:15 a.m., PAHS holds an "activity period" from 8:15 a.m. until 8:54 a.m. During the activity period, students have free reign in a closed universe. They may go to club meetings, study hall or student government gatherings. They may take make-up tests, hang out in the gymnasium or library, or attend tutoring programs and college test prep clinics. Alternatively, they may remain in homeroom. Students may not, however, leave the campus. The first classroom period begins immediately after this activity period.

Through an informal permission process, PAHS grants official recognition to the clubs that meet during the activity period. With official recognition, a club may post signs about upcoming meetings and gain access to the public address system. Each club must have a faculty sponsor who monitors — but is not required to participate actively in — club meetings. Among the voluntary, noncurriculum related groups that meet during the activity period are the ski club, an anti-alcohol and anti-tobacco club called Students Against Destructive Decisions, and the future health services club.

Appellant Melissa Donovan is a PAHS senior who leads a Bible club known as FISH. The club — which focuses on community services and other issues of concern to students of [PAHS] from a Christian perspective — begins and ends every meeting with a prayer. Although Donovan never asked permission for FISH to meet as a club during the activity period because she "knew" that the answer would be "no," Appellees Punxsutawney Area School Board, District Superintendent J. Thomas Frantz, former PAHS Principal Allen Towns and current PAHS Principal David London have stipulated that FISH may not meet during the activity period due to the club's religious ties. FISH is not recognized as an official school club, but the School Board has permitted the club to meet at PAHS before mandatory attendance from 7:15 a.m. until 7:50 a.m. — a time during which no other club meets.


On January 23, 2002, Donovan — through her parents — brought suit under the First Amendment, the Fourteenth Amendment, 42 U.S.C. § 1983 and the Equal Access Act, 20 U.S.C. § 4071 et seq. In her initial complaint, she sought "[a] temporary restraining order, a preliminary injunction, and a permanent injunction" prohibiting the defendants from denying her access to school facilities for the Bible club during the activity period; "nominal damages, presumed damages, and/or compensatory damages"; "punitive damages"; and "all compensable costs and attorney's fees[.]" App. II at 4. She contended that PAHS and the School Board improperly infringed on her First Amendment right to free speech by denying FISH access to school facilities solely on the basis of the club's religious nature. Donovan moved for a preliminary injunction to force PAHS and the School Board to permit FISH to meet during the activity period pending a final decision. After a hearing, the District Court denied the motion in its Findings of Fact, Conclusions of Law and Order of September 13, 2002, concluding that Donovan was not likely to succeed on the merits of her claims. The District Court held that the EAA did not apply to the activity period because the activity period did not qualify as "non-instructional time" as that term is defined in the statute. It also held that the school's refusal to allow the club to meet during the activity period did not violate the First Amendment because school officials had a compelling interest in not violating the Establishment Clause — outweighing Donovan's First Amendment interests.

On October 10, 2002, upon the agreement of the parties that the district court's denial of the preliminary injunction resolved all the issues, the district court entered a Final Order closing the case and denying all relief. On October 16, 2002, Donovan filed a timely Notice of Appeal.

We heard oral argument in this case on May 14, 2003. On June 4, 2003, this court requested Letter Briefs from each party on the issue of mootness. Donovan graduated from PAHS on June 6, 2003.


The United States District Court for the Western District of Pennsylvania had jurisdiction of the underlying action pursuant to 28 U.S.C. § 1331 based on Donovan's claims under the First Amendment, Fourteenth Amendment, 42 U.S.C. § 1983 and the Equal Access Act, 20 U.S.C. § 4071 et seq. Moreover, the court also had jurisdiction pursuant to 28 U.S.C. § 1343 of Appellant's civil rights claims. This court has jurisdiction pursuant to 28 U.S.C. § 1291.


At the outset, we must address whether Appellant's request for injunctive and declaratory relief has become moot because she no longer attends PAHS. Although the parties did not raise the issue in their original briefs, we resolve the issue sua sponte because it implicates our jurisdiction. See Rogin v. Bensalem Township, 616 F.2d 680, 684 (3d Cir. 1980) ("Inasmuch as mootness would divest us of jurisdiction to consider this appeal, we are obligated to address this issue as a threshold matter.") (footnote omitted).


The Constitution limits this court's jurisdiction to the adjudication of actual cases and controversies. U.S. CONST. art. III, § 2; DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam). "[A] case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). The court's ability to grant effective relief lies at the heart of the mootness doctrine. County of Morris v. Nationalist Mvmt., 273 F.3d 527, 533 (3d Cir. 2001). That is, "[i]f developments occur during the course of adjudication that eliminate a plaintiff 's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-699 (3d Cir. 1996). This requirement that a case or controversy be "actual [and] ongoing" extends throughout all stages of federal judicial proceedings, including appellate review. Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 193 (3d. Cir. 2001). If a case has become moot after the district court's entry of judgment, an appellate court no longer has jurisdiction to entertain the appeal. Mills v. Green, 159 U.S. 651, 653 (1895).

"The availability of declaratory [and injunctive] relief depends on whether there is a live dispute between the parties." Powell v. McCormack, 395 U.S. 486, 517-518 (1969) (citation omitted); Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 40 (3d Cir. 1985) ("A declaratory judgment is available only so long as there is an actual controversy [between] the parties."). When a student challenges the constitutionality of a school policy, graduation typically moots her claim for injunctive or declaratory relief. See, e.g., Bd. of Sch. Comm'rs of Indianapolis v. Jacobs, 420 U.S. 128, 129 (1975) (per curiam) ("[Once] all of the named plaintiffs in the action [have] graduated... a case or controversy no longer exists."); Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir. 2003) ("[Students'] claims for declaratory and injunctive relief generally become moot when they graduate."); Stotts v. Cmty. Sch. Dist. No. 1, 230 F.3d 989, 991 (7th Cir. 2000) (holding that the "case lacks a live controversy [because the plaintiff] has graduated"); Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000), cert. denied, 532 U.S. 905 (2001) ("It is well-settled that once a student graduates, he no longer has a live case or controversy justifying declaratory and injunctive relief against a school's action or policy."); Penderson v. La. State Univ., 213 F.3d 858, 874-875 (5th Cir. 2000) (finding injunctive claims mooted by student's graduation).


We have held, however, that graduation from school does not automatically render a case moot if the student's claims are "capable of repetition, yet evading review." Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1113-1115 (3d Cir. 1992). This extremely narrow exception to the mootness doctrine is applicable only where: 1) the challenged action is too short in duration to be fully litigated before the case will become moot; and 2) there is a reasonable expectation that the complaining party will be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam).

We begin with the first prong of the test. Although we quite reasonably concluded in Brody that the challenge to religious speech in a graduation ceremony by students who had not yet graduated was not moot because the length of the senior year was "clearly too short to complete litigation and appellate review of a case of this complexity," Brody, 957 F.2d at 1113 (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 186 n.9 (1982)), the exception cannot rescue Donovan's appeal from the perils of mootness. A case challenging PAHS's ban of the Bible club from the activity period will not always evade review. A PAHS sophomore, for example, who challenges the ban would enjoy a three-year window in which to litigate the issue to completion. Donovan graduated on June 6, 2003, and she no longer has a reasonable expectation of being subjected to the policy.

As to the second prong, there is no reasonable expectation that Donovan will be subjected to the same action again.*fn2 She has graduated and will never again return to PAHS as a student. This court may not grant her injunctive relief, as such relief would have no impact on her whatsoever.

Accordingly, Donovan's claim for declaratory and injunctive relief is moot.*fn3


When a specific claim becomes moot after the entry of a district court's final judgment and prior to the completion of appellate review, we have the power to vacate the district court's judgment as to that claim. United States v. Munsingwear, 340 U.S. 36, 39 (1950); Bagby v. Beal, 606 F.2d 411, 414 (3d Cir. 1979). The Munsingwear rule is an equitable one that is "commonly used... to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences." Munsingwear, 340 U.S. at 41. Vacatur of the lower court's judgment "is warranted only where mootness has occurred through happenstance — circumstances not attributable to the parties." Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997); Jersey Cent. Power & Light v. New Jersey, 772 F.2d 25, 26-27 (3d Cir. 1985). " Munsingwear should not be applied blindly, but only after a consideration of the equities and the underlying reasons for mootness." Humphreys v. Drug Enforcement Admin., 105 F.3d 112, 113-114 (3d Cir. 1996). Accordingly, ...

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