On Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil Action No. 90-03871
Before: Becker, Scirica and Roth, Circuit Judges
This suit derives from a dispute over whether and to what extent religious speech may be included in a public high school graduation ceremony, and requires us to evaluate the competing interests of students under the free speech and establishment clauses of the First Amendment. The underlying action was filed by two members of the Class of 1990 at the Downingtown Area Senior High School by and through a next friend. Among other allegations, the complaint asserted that the inclusion of prayer at commencement exercises violated the establishment clause.
The question raised on the present appeal is whether the district court erred in denying the motion of another group of students and their parents either to intervene as of right or in the alternative for permissive intervention. This second group asserts that students possess a free speech right to discuss religion in graduation speeches. The validity and sufficiency of this claimed legal interest under the test for intervention as of right, depends on whether the graduation ceremony qualifies as a First Amendment public forum. Because we find that the factual record as to the nature and history of commencement exercises at Downingtown Senior High School is inadequate, we are unable to decide this question. We will consequently remand this case to the district court for further development of the factual record and for a determination of the public forum issue.
I. FACTS AND PROCEDURAL HISTORY
The plaintiffs in the underlying suit are Drew Brody and Jennifer Hohnstine (the "Brody group"), two students in the Class of 1990 at Downingtown Area Senior High School. The defendants are the president and members of the school board, and the principal and superintendent of the school (the "school officials"). The central claim of the plaintiffs' complaint alleged that the school officials' sponsorship of an official baccalaureate service, inclusion of religious benedictions and invocations at graduation ceremonies, and requirements that students write essays on religious subjects in English class, all violated students' rights under the establishment clause. The Brody group also challenged the school's denial of permission for the formation of a student group to discuss the constitutionality of the baccalaureate and graduation ceremonies, on free speech grounds and under the Equal Access Act, 20 U.S.C. §§ 4071-74 (1988).
The plaintiffs filed their suit on June 7, 1990, one day before the June 8, 1990 graduation ceremony, and several days after a school-sponsored baccalaureate service had been held on June 3, 1990. With the agreement of the defendant school officials, the district court entered a temporary restraining order that same day, prohibiting "any prayer or proselytization in [the] benediction or invocation" at the commencement. Joint App. at A-17. On the day of graduation, three other members of the Class of 1990 filed a motion to intervene.
Two weeks later, seven additional individuals joined in the intervention motion, and the group filed a brief in support of their position. These applicants for intervention (the "Fitzgerald group") fall into three categories: (1) Bonnie Fitzgerald, Charles Guth, and Lauri Kyler, the original applicants, who are members of the Class of 1990; (2) Timothy Cura and Amber Fernald, who are members of the Class of 1991; and (3) Millard Fitzgerald, John Guth, Laura Kyler, Joseph Cura, and Patricia Fernald, who are parents of these students and taxpayers in the school district. The Fitzgerald group's motion before the district court asserted that the TRO and the final relief sought by the Brody group infringed the Fitzgerald students' rights of free speech and freedom of association. The plaintiffs filed an opposition to the intervention motion, but the defendant school officials took no position on the issue.
Several days after the June 8th graduation, the Brody group also filed a motion for contempt, alleging that the president of the school board had offered a prayer during the commencement and that consequently defendants had breached the TRO. After negotiations by the parties on both the matters raised in the complaint and those asserted in the motion for contempt, the parties agreed to a consent decree, which the district court approved on September 24, 1990. As of that date, the district court had not yet ruled on the motion to intervene, and the members of the Fitzgerald group were not involved in the settlement negotiations.*fn1
The consent decree entered by the district court prohibits conducting baccalaureate services or including prayer or religious ceremonies in any graduation ceremony or other official event at Downingtown Senior High School. The provision pertaining to commencement exercises and other official events applies not only to the defendant school officials, but also to "those acting by their invitation," and states that "except with respect to students invited to speak at graduation, nothing in this agreement shall be interpreted to restrict any student's first amendment rights." Joint App. at A-61. Not surprisingly, this term provides the focus for the Fitzgerald group's free speech claims. The order also provides for compliance with the Equal Access Act, 20 U.S.C. §§ 4071-74 (1988), and establishes a procedure for amendment of the decree upon any change in the state of the law.*fn2
Following the adoption of the consent decree, the applicants for intervention filed an appeal of the district court's order. This Court, however, dismissed the appeal for lack of appellate jurisdiction in Brody v. Spang, No. 90-1804 (3d Cir. Jan. 11, 1991). See Pennsylvania v. Rizzo, 530 F.2d 501, 508 (3d Cir.) (appellant must have been granted permission to intervene in order to appeal merits of case), cert. denied, 426 U.S. 921, 49 L. Ed. 2d 375, 96 S. Ct. 2628 (1976). On February 22, 1991, the district court formally ruled on and denied the motion to intervene. Brody v. Spang, 1991 WL 24954 (E.D. Pa. 1991). The district court found that none of the applicants for intervention possessed a sufficient legal interest in the dispute, and that to the extent any such interest existed, it was adequately represented by the defendant school officials. The Fitzgerald group now appeals from this denial of their motion to intervene.
As a preliminary matter, we must assess whether this case has become moot on appeal. Although the district court decided the motion to intervene several months before the 1991 graduation ceremony, by the time that we heard oral argument on this appeal, all the student members of the Fitzgerald group had already graduated from Downingtown Senior High School. We are therefore required to consider whether the graduation of the applicants for intervention who are members of the Class of 1991 renders this appeal moot.
This Court is limited by Article III of the Constitution to adjudicating only live cases or controversies, and we are consequently unable to decide questions that have become moot. De Funis v. Odegaard, 416 U.S. 312, 316, 40 L. Ed. 2d 164, 94 S. Ct. 1704 (1974) (per curiam). The mootness bar does not apply, however, if the dispute presented is "capable of repetition, yet evading review." Under this doctrine, two elements must be met: "(1) the challenged action [must be] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [must be] a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975) (per curiam). See also Roe v. Wade, 410 U.S. 113, 124-25, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) ("Pregnancy often comes more than once to the same woman, and . . . provides a classic justification for a Conclusion of nonmootness.").
In the present case, the length of the school year during which a student is a graduating high school senior is clearly too short to complete litigation and appellate review of a case of this complexity. See Board of Educ. v. Rowley, 458 U.S. 176, 186, 102 S. Ct. 3034, 73 L. Ed. 2d 690 n.9 (1982) (student's claim under Education of the Handicapped Act for preceding school year not moot because claim may arise in subsequent years and "judicial review invariably takes more than nine months to complete"); cf. Roe, 410 U.S. at 125 ("the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete"). As a result, this controversy is one which "evades review." The applicants for intervention have greater difficulty, however, with the second prong of the test. These same students will never again graduate from Downingtown Senior High School, and thus, this dispute is not capable of repetition as to them.
We reject the argument that the Fitzgerald group can escape this difficulty simply because they contemplated seeking class certification, and noted in their motion to intervene that they would "subsequently file a motion pursuant to Rule 23 of the Federal Rules of Civil Procedure for class certification." Joint App. at A-19. Although class certification can substitute for the capable of repetition requirement if the controversy still exists as to the present members of the class, a class must have been properly certified in order to qualify under this exception. See Board of School Comm'rs v. Jacobs, 420 U.S. 128, 129-30, 43 L. Ed. 2d 74, 95 S. Ct. 848 (1975). In fact in Jacobs, the plaintiffs had not only filed a class certification motion, but the district court had granted it, and yet the Supreme Court still held that the plaintiffs had failed to meet the class action exception because the order did not adequately define the class to be represented. In the present case, however, the applicants for intervention never even moved for class certification.
Yet, also among the Fitzgerald group are five parents, who assert their claims on the basis of their children's interests.*fn3 Their inclusion is significant because these parents independently have standing to bring constitutional challenges to the conditions in their children's schools, see School Dist. of Abington Township v. Schempp, 374 U.S. 203, 224, 10 L. Ed. 2d 844, 83 S. Ct. 1560 n.9 (1963), and at least two of the five parents have younger children in the Downingtown School District: John Guth's daughter Susan is in the seventh grade and Patricia Fernald's son Charles is in the eleventh grade.*fn4 Since the consent decree is designed to remain in effect indefinitely, it is likely that these parents will confront the same barriers to religious speech when their younger children graduate from high school. See Honig v. Doe, 484 U.S. 305, 320-22, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988). Consequently, as to these two individuals, the present dispute is capable of repetition.
In fact, the Fifth Circuit confronted an almost identical mootness question in Walsh v. Louisiana High School Athletic Ass'n, 616 F.2d 152 (5th Cir. 1980), cert. denied, 449 U.S. 1124, 67 L. Ed. 2d 109, 101 S. Ct. 939 (1981), which involved a free exercise of religion challenge to a high school's transfer policy for ninth graders. During the pendency of the Walsh case, all of the originally named students completed the ninth grade, and were therefore no longer subject to the challenged rule. The plaintiffs informed the district court, however, that several of the plaintiff parents had other children in the school system who would ultimately reach the high school. See Walsh v. Louisiana High School Athletic Ass'n, 428 F. Supp. 1261, 1263 (E.D. La. 1977). The Fifth Circuit affirmed the district court's holding that the case had consequently not become moot, because "the district court reasonably could expect that the same complaining parties again would be subjected to the challenged action in the future." 616 F.2d at 157.
In addition, our own Court has stated in an in banc opinion that the capable of repetition prong of this exception should be applied liberally in cases involving significant individual interests. See United States v. Frumento, 552 F.2d 534, 540-41 (3d Cir. 1977) (in banc). In Frumento, this Court held that the appeal of a contempt order requiring imprisonment was not moot despite the fact that the appellant had already been released. After conducting an analysis demonstrating why the particular individual might again be subject to confinement, we stated:
Even if we could not construct or project any "capability of repetition" in this case, we would nevertheless decline to dismiss [this] appeal as moot.
While in each of the instances discussed, the Supreme Court has determined that "capability of repetition" existed, we are of the view that such capability was perceived so as to satisfy the true governing consideration behind the Court's decision -- that of having review available when significant interests are at stake.
Thus, at least as to the parents John Guth and Patricia Fernald, this dispute is capable of repetition yet evading review. As a result, we hold that this controversy is not moot, and we will proceed to consider the merits of this appeal.*fn5
III. STANDARDS FOR INTERVENTION
We review a denial of a motion to intervene as of right for abuse of discretion, although this review is "more stringent" than the abuse of discretion review we apply to a denial of a motion for permissive intervention. Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir.), cert. denied, 484 U.S. 947, 108 S. Ct. 336, 98 L. Ed. 2d 363 (1987). Under the Harris standard, a denial of intervention as of right should be reversed if the district court "'applied an improper legal standard or reached a decision that we are confident is incorrect.'" Id. (quoting United States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968, 992 (2d Cir. 1984)). We are more reluctant to intrude into the highly discretionary decision of whether to grant permissive intervention.
The Fitzgerald group seeks intervention as of right as a party defendant under Fed. R. Civ. P. 24(a)(2), which covers any proposed intervenor who by timely application, "claims an interest relating to the property or transaction which is the subject matter of the action and . . . is so situated that the Disposition of the action may as a practical matter impair or impede his ability to protect that interest," and whose interest is not "adequately represented by existing parties." As construed by this Court, this rule entitles an applicant to intervene if:
(1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the Disposition of the action; and (4) the interest is not ...