Donovan ex rel. Donovan v. Punxsutawney School Bd.

• Decision Date: 15 July 2003
• Docket Number: No. 02-3897.,02-3897.
• Citation: 336 F.3d 211
• Parties: Melissa DONOVAN, A Minor, By Michael DONOVAN and Julie Donovan, Her Parents, Plaintiff-Appellant, v. The PUNXSUTAWNEY AREA SCHOOL BOARD; Dr. J. Thomas Frantz, Individually and in his Capacity as Superintendent of the Punxsutawney Area High School; Allen Towns, Individually and in his Capacity as Principal of the Punxsutawney Area High School; and David London, Individually and in his Capacity as Principal of the Punxsutawney Area High School, Defendants-Appellees.
• Court: U.S. Court of Appeals — Third Circuit

336 F.3d 211

Melissa DONOVAN, A Minor, By Michael DONOVAN and Julie Donovan, Her Parents, Plaintiff-Appellant, v. The PUNXSUTAWNEY AREA SCHOOL BOARD; Dr. J. Thomas Frantz, Individually and in his Capacity as Superintendent of the Punxsutawney Area High School; Allen Towns, Individually and in his Capacity as Principal of the Punxsutawney Area High School; and David London, Individually and in his Capacity as Principal of the Punxsutawney Area High School, Defendants-Appellees.

No. 02-3897.

United States Court of Appeals, Third Circuit.

Argued May 14, 2003.

July 15, 2003.

COPYRIGHT MATERIAL OMITTED

Lawrence G. Paladin, Jr. (argued), Participating Attorney for The, Rutherford Institute, Paladin Law Offices, Pittsburgh, PA, John W. Whitehead, Steven H. Aden, Rita Dunaway, M. Casey Mattox, The Rutherford Institute, Charlottesville, VA, for Appellant.

Eric W. Treene (argued), Ralph F. Boyd, Jr., Assistant Attorney General, J. Michael Wiggins, Principal Deputy Attorney General, Mark L. Gross, Andrea Picciotti-Bayer, United States Department of Justice, Civil Rights Division, Washington DC, Amicus Curiae in Support of Appellant.

Kimberlee Wood Colby, Gregory S. Baylor, Nathan A. Adams, Center for Law and Religious Freedom of the Christian Legal, Society, Annandale, VA, Amicus Curiae in Support of Appellant.

Michael D. Seymour (argued), Feczko and Seymour, Pittsburgh, PA, for Appellees.

Before: RENDELL, SMITH and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

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 "noninstructional 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,¹ 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 "noninstructional 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.

I.

A.

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.

B.

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 "noninstructional 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.

C.

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.

II.

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).

A.

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, 94 S.Ct. 1704, 40 L.Ed.2d 164 (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, 89 S.Ct. 1944, 23 L.Ed.2d 491 (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, 16 S.Ct. 132, 40 L.Ed. 293 (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, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (citation omitted); Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 40 (3d Cir.1985) ("A...