Brody By and Through Sugzdinis v. Spang

Page 1108

957 F.2d 1108

73 Ed. Law Rep. 404

Drew BRODY, Jennifer Hohnstine, By and Through their next friend, Joanne SUGZDINIS, on behalf of themselves and other students similarly situated v. Edward SPANG, individually and in his official capacity as Principal, Downingtown Area Senior High School, Ronald Gray individually and in his official capacity as Superintendent Robert Eldredge, individually and in his capacity as President, Downingtown Area School Board, Cynthia Hallman Nancy Glenn, Olen Simmons, James Watson, Benjamin Lagarde Andrew Harden, Frank Marcocci, Shirley Hamhons, individually and in their official capacities as members of Downingtown Area School Board, Bonnie Fitzgerald, by and through her guardian, Millard C. Fitzgerald, Millard C. Fitzgerald as an individual, Charles Guth, by and through his guardian John Guth as an individual, Lauri Kyler, by and through her guardian, Laura Kyler, Laura Kyler as an individual, Timothy Cura, by and through his guardian Joseph Cura, Joseph Cura as an individual, Amber Fernald, by and through her guardian, Patricia Fernald, Patricia Fernald as an individual, on behalf of themselves and other students and taxpayers similarly situated, Proposed Intervenors, Appellants.

No. 91-1209.

United States Court of Appeals, Third Circuit.

Argued July 31, 1991.

Decided Feb. 28, 1992.

As Amended March 18, 1992.

Stefan Presser (argued), American Civil Liberties Union, Philadelphia, Pa., for Brody and Hohnstine.

James E. McErlane (argued), Lamb, Windle & McErlane, West Chester, Pa., for Spang, Gray, Eldredge, Hallman, Glenn, Simmons, Watson, Lagarde, Harden, Marcocci and Hamhons, Thomas C. Crumplar, Jacobs & Crumplar, Thomas S. Neuberger (argued), Wilmington, Del., Cooperating Attorneys for The Rutherford Institutes of Delaware and Pennsylvania, for appellants.

Before BECKER, SCIRICA and ROTH, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge.

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. ¹

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 "[e]xcept 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. ²

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, 96 S.Ct. 2628, 49 L.Ed.2d 375 (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.

II. MOOTNESS

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, 94 S.Ct. 1704, 1705, 40 L.Ed.2d 164 (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, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam). See also Roe v. Wade, 410 U.S. 113, 124-25, 93 S.Ct. 705, 712-13, 35 L.Ed.2d 147 (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...