Donovan v. Punxsutawney Area School Board

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

7-15-2003

Donovan v. Punxsutawney Area

Precedential or Non-Precedential: Precedential

Docket No. 02-3897

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation

"Donovan v. Punxsutawney Area" (2003). 2003 Decisions. Paper 322.

http://digitalcommons.law.villanova.edu/thirdcircuit_2003/322

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

Filed July 15, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3897

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.

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

Argued: May 14, 2003

Before: RENDELL, SMITH and ALDISERT, Circuit Judges

(Filed: July 15, 2003)

2

Lawrence G. Paladin, Jr. (argued)

Participating Attorney for The

Rutherford Institute

Paladin Law Offices

1700 Frankstown Road, Suite 305

Pittsburgh, Pennsylvania

15235-3049

John W. Whitehead

Steven H. Aden

Rita Dunaway

M. Casey Mattox

The Rutherford Institute

112 Whitewood Road

Charlottesville, Virginia 22901

COUNSEL 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

Appellate Section-PHB 5502

950 Pennsylvania Avenue NW

Washington, D.C. 20530-0001

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

4208 Evergreen Lane

Suite 222

Annandale, Virginia 22003

AMICUS CURIAE IN SUPPORT

OF APPELLANT

3

Michael D. Seymour (argued)

Feczko and Seymour

Suite 520, Grant Building

310 Grant Street

Pittsburgh, Pennsylvania 15219

COUNSEL FOR APPELLEES

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

1. Although she has now graduated, the opening briefs were filed and

oral argument took place while she was still a student, during which

time she was referred to as such. We will do the same.

4

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

5

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

6

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 (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

7

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).

B.

We have held, however, that graduation from school does

not automatically render a case moot if the student’s claims

8

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.2 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.

2. We do note that parents independently have standing to bring

constitutional challenges to the conditions in their children’s schools.

Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 224 n.9

(1963); Brody, 957 F.2d at 1114. If Donovan’s parents had another child

in the PAHS system and would “confront the same barriers to religious

speech when their children” reach high school, we could potentially find

that the present dispute was capable of repetition as to them. Brody, 957

F.2d at 1114. See also Honig v. Doe, 484 U.S. 305, 320-322 (1988).

Donovan’s counsel, nonetheless, has provided no information in this

regard, and we do not entertain the argument here.

9

Accordingly, Donovan’s claim for declaratory and

injunctive relief is moot.3

III.

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, neither “mootness by reason of settlement,”

U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S.

18, 29 (1994), nor mootness due to the voluntary act of the

losing party, Karcher v. May, 484 U.S. 72, 82-83 (1987),

justifies vacatur of a judgment under review.

Because Donovan’s claims for declaratory and injunctive

relief became moot through happenstance, and for the

reasons that follow, we exercise our power to vacate the

3. Although Donovan’s counsel has stated that he intends to add a party

pursuant to Federal Rule of Civil Procedure 21, we will not rule on the

propriety of substituting a party via that method. In the absence of a

motion to add, any ruling by this court on the issue would constitute

nothing but an advisory opinion, contravening the Constitution’s

limitation of federal jurisdiction to actual cases and controversies. See

Travelers Ins. Co. v. Obusek, 72 F.3d 1148, 1153 (3d Cir. 1995) (quoting

Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 410 (3d Cir. 1992))

(“[Article III, section 2 of the Constitution] ‘stands as a direct prohibition

on the issuance of advisory opinions.’ ”).

10

district court’s judgment to the extent that it denied such

relief.

IV.

Although Donovan’s claim for declaratory and injunctive

relief is moot, her damages and attorney’s fees claims

continue to present a live controversy. Boag v. MacDougall,

454 U.S. 364 (1982) (holding that the transfer to another

prison did not moot a claim for damages arising from

placement in solitary confinement); Jersey Cent. Power &

Light Co. v. New Jersey, 772 F.2d 35, 41 (3d Cir. 1985)

(“[T]he availability of damages or other monetary relief

almost always avoids mootness. . . . Damages should be

denied on the merits, not on the grounds of mootness.”).

We shall therefore review the district court’s determination,

bound up in its October 10, 2002 final order, that Donovan

is not entitled to money damages and attorney’s fees.

A.

Where . . . the facts are not in dispute and the parties

challenge the choice, interpretation, and application of legal

precepts, our review is plenary.” Gregoire v. Centennial Sch.

Dist., 907 F.3d 1366, 1370 (3d Cir. 1990).

B.

More than 20 years ago in Widmar v. Vincent, 454 U.S.

263 (1981), the Supreme Court held that a state college

that sponsored a limited public forum violated the First

Amendment when the college denied a religious student

organization equal access to its facilities. As a corollary, the

Court also held that permitting equal access would not

contravene the First Amendment’s Establishment Clause.

Id. at 276-277.

Although the Court squarely addressed the parameters

of the limited public forum in the public university context,

it left unresolved the question of whether the case’s

holding extended to public secondary schools. Indeed, the

Court distinguished younger students from their

11

“less impressionable” college counterparts, who should

understand that a policy of equal access for religious

groups does not imply impermissible state endorsement of

religion. Id. at 274 & n.14; Pope v. E. Brunswick Bd. of

Educ., 12 F.3d 1244, 1245 (3d Cir. 1993).

It was against this backdrop that we decided Bender v.

Williamsport Area Sch. Dist., 741 F.2d 538 (3d Cir. 1984),

vacated on other grounds, 475 U.S. 534 (1986) — a case in

which we held that equal access for religious groups in

public secondary schools violated the Establishment Clause

by focusing on the differences between high school and

college environments.4 Although we took account of the

time-tested axioms that students do not shed their rights to

freedom of speech at the schoolhouse gate, Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969),

and that “religious worship and discussion . . . are forms of

speech and association protected by the First Amendment,”

Widmar, 454 U.S. at 269, we began by only tentatively

concluding that the secondary school had created a limited

public forum when it excluded a student prayer group from

meeting during a regularly scheduled student activity

period nearly identical to the one at PAHS. Bender, 741

F.2d at 548. In subsequently applying the second prong of

the talismanic Lemon v. Kurtzmann test to determine

whether permitting the group to meet would have the effect

of advancing or inhibiting religion (and thus would violate

the First Amendment’s Establishment Clause), we noted

that “high school students stand in a very different position

than university students in terms of maturity and

impressionability[, as they] would be less able to appreciate

4. The Supreme Court ultimately vacated Bender on the ground that the

respondent — an individual member of the School Board — lacked

standing to appeal from a declaratory judgment against the School

Board itself. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 549

(1986), vacating on other grounds, Bender v. Williamsport Area Sch. Dist.,

741 F.2d 538 (3d Cir. 1984). Accordingly, the Court did not treat the

First Amendment issues that we discussed.

In vacating our opinion, the Supreme Court stripped Bender of any

force of law, and we are not controlled by it in any way, shape, or form.

But because the district court leaned so heavily on our lifeless Bender

holding to reach its conclusion, we shall address its content here.

12

the fact that permission for [the prayer group] to meet

would be granted out of a spirit of neutrality toward religion

and not advancement.” Id. at 552. In light of this maturity

difference and the additional fact that state law mandates

compulsory attendance, we held that permitting the prayer

group to meet would contravene the Establishment Clause

because “the danger of communicating . . . state approval

of religion” would outweigh free speech concerns. Id. at

555.

C.

Congress, however, spoke very loudly in the days

following Bender by enacting the Equal Access Act in 1984

to answer the very question left open by the majority in

Widmar — namely, whether permitting equal access to

religious groups in the public secondary school setting

would violate the Establishment Clause. Equal Access Act,

Pub. L. 98-3771, 98 Stat. 1302 (codified at 20 U.S.C.

§§ 4071-4074). Congress believed that it would not.

With the EAA, Congress specifically made it “unlawful for

any public secondary school which receives federal financial

assistance and which has a limited open forum to deny

equal access” to student groups based on the religious or

other content-based nature of the speech at their proposed

meetings. 20 U.S.C. § 4071(a). Congress passed the statute

to address perceived widespread discrimination against

religious speech in public schools. H.R. REP. NO. 98-710, at

4 (1984); S. REP. NO. 98-357, at 10-11 (1984). In particular,

committee reports show that the EAA was enacted partly in

response to two federal appellate court decisions holding

that student religious groups could not, consistent with the

Establishment Clause, meet on school premises during

noninstructional time. H.R. REP. NO. 98-710, at 3-6

(discussing Lubbock Civil Liberties Union v. Lubbock Indep.

Sch. Dist., 669 F.2d 1038, 1042 (5th Cir. 1982), cert.

denied, 459 U.S. 1155-1156 (1983), and Brandon v.

Guilderland Bd. of Educ., 635 F.2d 971 (2d Cir. 1980), cert.

denied, 454 U.S. 1123 (1981)); S. REP. NO. 98-357, at 6-9

(1984) (same).

Although not mentioned by members of the House or

Senate, Bender is precisely the sort of decision that

13

motivated Congress to pass the EAA. The District Court

saw Bender as controlling, but we disagree, for important

congressional activity and judicial interpretations of that

activity took place after we issued that decision. Bender

came down on July 24, 1984; the EAA went into effect on

August 11, 1984. In Bd. of Educ. of Westside Cmty. Schs.

v. Mergens, the Supreme Court held that the EAA did not,

at least on the facts presented there, contravene the

Establishment Clause. 496 U.S. 226, 253 (1990). And for

the reasons set forth therein, we conclude that the same

determination is mandated under the facts in the case at

bar.

There is no doubt that the EAA and its jurisprudential

progeny control our interpretation of the case before us

today. See Mergens, 496 U.S. at 239 (relating the legislative

purposes behind the EAA); Pope, 12 F.3d at 1245 (noting

the transition from Bender to the EAA and applying the

EAA in an equal access scenario). Moreover, the Supreme

Court vacated Bender — albeit on different grounds — in

1986, rendering completely hollow the case on which the

district court pinned its discussion. Bender v. Williamsport

Area Sch. Dist., 475 U.S. 534, 549 (1986), vacating on other

grounds, Bender v. Williamsport Area Sch. Dist., 741 F.2d

538 (3d Cir. 1984).

It is now opportune to discuss the EAA and the

experience of the judiciary in interpreting it.

V.

The EAA provides that it is “unlawful for any public

secondary school which receives federal financial assistance

and which has a limited open forum to deny equal access

. . . to . . . any students who wish to conduct a meeting

within that limited open forum on the basis of the religious

. . . content of the speech at such meetings.” 20 U.S.C.

§ 4071(a). Different from the “term of art” of the “limited

public forum” established by the Supreme Court in its free

speech cases, Mergens, 496 U.S. at 242, Congress

determined that a “limited open forum” is created

“whenever such school grants an offering to or opportunity

for one or more noncurriculum related student groups to

14

meet on school premises during noninstructional time.” 20

U.S.C. § 4071(b). “Meeting” is defined to include “those

activities of student groups which are permitted under a

school’s limited open forum and are not directly related to

the school curriculum.” 20 U.S.C. § 4072(3).

“Noninstructional time” is defined to mean “time set aside

by the school before actual classroom instruction begins or

after actual classroom instruction ends.” 20 U.S.C.

§ 4072(4). “Thus, even if a public secondary school allows

only one ‘noncurriculum related student group’ to meet, the

Act’s obligations are triggered and the school may not deny

other clubs, on the basis of the content of their speech,

equal access to meet on school premises during

noninstructional time.” Mergens, 496 U.S. at 236.

In Mergens, the Supreme Court defined the term

“noncurriculum related student group” as “one that has

more than just a tangential or attenuated relationship to

courses offered by the school. . . . It follows, then that a

student group that is ‘curriculum related’ must have a

more direct relationship to the curriculum than a religious

or political club would have.” 496 U.S. at 238. The Court

then remarked that “the term ‘noncurriculum related

student group’ is best interpreted broadly to mean any

student group that does not directly relate to the body of

courses offered by the school.” Id. at 239.

Three years after Mergens, we distilled the Supreme

Court’s description into a four-part test for determining

when a student group directly relates to the school

curriculum:

1. The group’s subject matter is (or soon will be)

taught in a regularly offered course;

2. The group’s subject matter concerns the body of

courses as a whole;

3. Participation in the group is required in a

particular course; or

4. Academic credit is given for participation in the

group.

Pope v. E. Brunswick Bd. of Educ., 12 F.3d 1244, 1251 (3d

Cir. 1990). Explicating this test, we emphasized that “the

15

subject matter of the student group must be taught in a

class. Thus, a chess club does not become curriculum-

related merely because its subject matter relates to

mathematics and science by building the ability to engage

in critical thought processes; unless chess is actually

taught, the club is a noncurriculum related student group.”

Id. at 1253.

Applying its own test, the Supreme Court deemed a

scuba diving club (the Subsurfers) and the Peer Advocates

— a service group that worked with special education

classes — “noncurriculum related groups” because they did

“not directly relate to the curriculum as a whole” or “to any

courses offered by the school and [were] not required by

any courses offered by the school.” Mergens, 496 U.S. at

245-246. In Pope, we placed the Key Club — a community

service group that “assists and enhances the students in

developing their civic responsibilities to the community” —

into the category of “noncurriculum related student

groups.” Pope, 12 F.3d at 1252. Notwithstanding the Board

of Education’s characterization of the Key Club as a

“service organization [that] draw[s] upon all curricula

areas,” we embraced the Supreme Court’s position in

Mergens that “school systems [may not] evade the Act’s

requirements ‘by strategically describing existing student

groups.’ ” Id. at 1253 (quoting Mergens, 496 U.S. at 244).

The case before us presents no such complex problem on

this front. PAHS allows a ski club and an anti-drug and

-alcohol club (Students Against Destructive Decisions),

among others, to meet during the school’s activity period.

These clubs are even less tangentially related to the

curriculum than was the Key Club in Pope. Accordingly, the

door to the limited open forum designation is ajar, but not

yet wide open.

VI.

The issue then comes whether the activity period during

which at least one “noncurriculum related group” meets

constitutes “noninstructional time” under the EAA. The

EAA defines “noninstructional time” as “time set aside by

the school before actual classroom instruction begins or

16

after actual classroom instruction ends.” 20 U.S.C.

§ 4072(4).

Because neither this court nor the Supreme Court has

yet to expound on the meanings of “noninstructional time”

or “actual classroom instruction,” we begin with the “plain

meaning of [the] statute.” United States v. Hodge, 321 F.3d

429, 436 (3d Cir. 2003); see also Smith v. Fid. Consumer

Disc. Co., 898 F.2d 907, 909 (3d Cir. 1990) (“The starting

point for interpreting a statute is the language of the

statute itself.”). Where the intent of Congress “has been

expressed in reasonably plain terms, that language must

ordinarily be regarded as conclusive.” Griffin v. Oceanic

Contractors, Inc., 458 U.S. 564, 570 (1982). “Recourse to

the legislative history . . . is unnecessary in light of the

plain meaning of the statutory text.” Zubi v. AT&T Corp.,

219 F.3d 220, 231 (3d Cir. 2000) (quoting Darby v.

Cisneros, 509 U.S. 137, 147 (1993)).

The plain meaning of “noninstructional time,” as defined

in § 4072(4), is time set aside by the school before actual

classroom instruction begins or after actual classroom

instruction ends. The very phrases “noninstructional time”

and “actual classroom instruction” demonstrate that there

may very well be times in the school day during which

students would not be receiving “actual classroom

instruction.”

Under this reading that is both plain and coherent, the

PAHS activity period falls into the category of

“noninstructional time.” At PAHS, actual classroom

instruction for all students does not begin until after the

conclusion of the activity period at 8:54 a.m. During the

activity period, at least one noncurriculum related group

meets. Other students may take make-up tests or attend

tutoring programs and college test prep clinics — two

activities more closely related to actual classroom

instruction.

That some students, however, may seek to engage in

classroom instruction during the activity period does not

render the entire period “instructional time” — much as

having a carton of spoiled milk in the refrigerator does not

mean that the apples, tomatoes and butter are rotten and

17

rancid too. Simply because the period may fall within the

more general parameters of the school day does not

indicate that all time within those parameters necessarily

constitutes actual classroom instruction.

A.

Nevertheless, the district court’s reasoning appeared to

mirror that of a particular case from the Court of Appeals

for the Ninth Circuit, Prince v. Jacoby, 303 F.3d 1074, 1088

(9th Cir. 2002) — a decision that stands for the proposition

that mere mandatory attendance marks the beginning of

actual classroom instruction. After citing Ceniceros v. Bd. of

Trustees of the San Diego Unified Sch. Dist., 106 F.3d 878,

880 (9th Cir. 1996) for the proposition that “[w]e have

already held that the plain meaning of “noninstructional

time” is defined unambiguously in the statute as the “time

set aside by the school before actual classroom instruction

begins or after classroom instruction ends,” the Prince

panel picked apart the plain and coherent meaning of

“actual classroom instruction.” Id. Looking to legislative

history, the panel reasoned that mandatory attendance

combined with the availability of some classroom

instruction gave rise to “actual classroom instruction” and

thus transformed the student/staff time into “instructional

time.” Id. Accordingly, it concluded that Spanaway Lake

High School’s “student/staff time” did not qualify as

“noninstructional time” because Spanaway Lake’s students

— unlike the Ceniceros students — were required to be in

attendance during the period. Id. The district court, too,

hung its hat on this “mandatory attendance” rationale.

Donovan v. Punxsutawney Area Sch. Bd., No. 02-205, at 6

(W.D. Pa. Oct. 10, 2002).

But in a court as large as the Ninth Circuit, where the

full court does not have the advantage of studying every

panel’s proposed opinion prior to publication as we do here,

it is not a rare event for one panel to overlook the reasoning

of a previous panel on the same subject. Even though the

Prince panel set forth an isolated quotation from the court’s

previous opinion in Ceniceros, its reasoning and decision

seem to fly squarely in the face of what should have been

18

considered binding precedent in that court. It is to

Ceniceros that we now turn.

B.

Focusing on the temporal aspect of the EAA, the Ninth

Circuit in Ceniceros held that a lunch period in the heart of

the school day — during which several noncurriculum

related student groups met and during which no “actual

classroom instruction” was offered — qualified as

“noninstructional time” because it was “time set aside by

the school before actual classroom instruction begins or

after classroom instruction ends.” Ceniceros, 106 F.3d at

880. It reasoned that a direct reading of the EAA dovetails

perfectly with the purpose of the legislation and with the

Mergens Court’s principles for construing it. Id. at 881.

Recalling that the Supreme Court repeatedly noted that the

EAA “must be given a ‘broad reading’ [to fulfill the EAA’s

broad purpose],” the Ceniceros panel concluded that “[o]nly

by interpreting ‘noninstructional time’ to include lunch

periods can we adhere to the Supreme Court’s instruction

and have our interpretation be ‘consistent with Congress’

intent to provide a low threshold for triggering the Act’s

requirements.” Id. (quoting Mergens, 496 U.S. at 239, 240).

To be sure, decisions of a sister court of appeals never

have the strong bite of precedent in this court.

Jurisprudentially speaking, they are considered persuasive

argument only, and we are free to accept or reject any of

their decisions. We accept Ceniceros and reject Prince

because we believe that these two cases cannot be

reconciled. We are persuaded that the Ceniceros panel

followed precisely the same analytical roadmap that we

followed in interpreting “noninstructional time.” We are

similarly persuaded that the Prince panel ignored both the

teachings of Ceniceros and the definition of

“noninstructional time” set forth in the EAA.

As stated before, the EAA defines “noninstructional time”

as “time set aside by the school before actual classroom

instruction begins or after actual classroom instruction

ends.” 20 U.S.C. § 4072(4). The Prince panel conceded that

“student/staff time [at Spanaway High] is a scheduled class

19

where attendance is taken, and where no formal classroom

instruction takes place, except on a voluntary, individual

basis. During this time, a student may work on homework,

receive one-on-one tutoring with a teacher, attend school

assemblies, or, with prior arrangement and scheduling,

participate in a student club meeting. Students are not

permitted to leave campus, and attendance is taken.” 303

F.3d at 1087 (emphasis added). Having conceded that “no

formal classroom instruction takes place,” the Prince panel

should have followed the mandatory logical rules of the

categorical deductive syllogism to conclude that the activity

period fell before or after “actual classroom instruction,”

thus qualifying under the statute. The student/staff time in

Prince fell in the middle of the instructional school day,

sandwiched between definite periods of “actual classroom

instruction” — a temporal framework identical to the

lunchtime scenario in Ceniceros.

C.

To conclude that mandatory attendance means that any

school period is actual classroom instruction is to undercut

both the specific the language and the statutory purpose of

the EAA. In Mergens, a Supreme Court plurality found this

time limitation significant because it cleverly avoids the

problem of mandatory attendance requirements during

religion-oriented sessions, which the Court had previously

struck down. Mergens, 496 U.S. at 251 (citing Edwards v.

Aguillard, 482 U.S. 578, 584 (1987) — a case invalidating

a state law requiring the teaching of creationism to

students during science classes for which attendance was

mandatory). See also Santa Fe Indep. Sch. Dist. v. Doe, 530

U.S. 290, 309-310 (2001) (equating a policy of mandatory

prayer before public school football games with school

sponsorship of religion and noting that some students must

attend the games due to seasonal commitments).

Although PAHS students must stay at the school during

the activity period, they need not attend the FISH Bible

club’s meeting — or any meeting, for that matter. It is not

mandatory attendance at the school, but mandatory

attendance at the group’s meeting that raises Establishment

Clause concerns.

20

In drafting the EAA, Congress could have said “before or

after the school day” or “before or after classes,” but it did

not. Instead, it used the concept of “actual classroom

instruction,” which we take to mean classroom instruction

in discrete areas.

It is beyond dispute that the PAHS activity period kicks

off “before actual classroom instruction begins,” as it comes

after a homeroom period during which no classroom

instruction occurs. Once again, just as “schools may not

evade the Act’s requirements ‘by strategically describing

existing student groups,’ ” Pope, 12 F.3d at 1253 (quoting

Mergens, 496 U.S. at 244), they may not do so by

strategically describing an activity period. Just as putting a

“Horse” sign around a cow’s neck does not make a bovine

equine, a school’s decision that a free-wheeling activity

period constitutes actual classroom instructional time does

not make it so.

D.

The district court was also ill-advised to rely on the

circumstance that the school district and the state school

board count the “activity period” toward the state’s

minimum number of hours of “instruction time” as a

rationale for neglecting to classify the activity period as

“noninstructional time.”5 Donovan v. Punxsutawney Area

Sch. Bd., No. 02-205, at 6 (W.D. Pa. Oct. 10, 2002).

Contrary to the District Court’s implication, we conclude

that the state’s interpretation of the broad phrase

5. The Punxsutawney Area School District counts the activity period as

“instructional time” for purposes of complying with Pennsylvania’s

minimum length of an instructional school day. 22 PA. CODE § 51.61

(2002). Pennsylvania law permits schools to count activity other than

“actual classroom instruction” in calculating the length of the school’s

instructional day. Under Pennsylvania law, “instruction time” is defined

as “the time during the school day which is devoted to instruction and

activities provided as an integral part of the school program under the

direction of certified school employees.” Id. State school board guidelines

include “[a]ssemblies, clubs, student councils, and similar activities

conducted during school hours” as among those activities which may be

counted as pupil instruction time. Basic Education Circulars, Instruction

Time and Act 80 Exceptions, 24 P.S. § 15-1504 (July 1, 2001).

21

“instructional time” by definition is much more inclusive

than the EAA’s restrictive measurement of “actual

classroom instruction.”; therefore, it is not controlling. The

Supremacy Clause establishes that, for the purposes of

EAA application, state law cannot be used to frustrate

application of federal law. U.S. CONST. art. VI, § 1, cl. 2.

Once again, in Mergens, the Supreme Court stated that

allowing school systems to define terms in a way that

“permits schools to evade the Act . . . would render the Act

merely hortatory.” 496 U.S. at 244. School systems cannot

be permitted to evade application of the EAA by stating that

a period that is otherwise a “limited open forum” does not

constitute “noninstructional time” under the EAA simply

because the school system chooses to count that time

toward the state minimum number of hours of instruction

time.

VII.

Having concluded that PAHS violated the EAA, we now

turn to Donovan’s First Amendment claim under 42 U.S.C.

§ 1983. The district court concluded that the PAHS activity

period was a limited public forum for which the Bible club

restriction was narrowly tailored to serve a compelling state

interest — namely, avoiding a possible transgression of the

First Amendment’s Establishment Clause. Donovan v.

Punxsutawney Area Sch. Bd., No. 02-205, at 7-8 (W.D. Pa.

Oct. 10, 2002). We disagree.

A.

In evaluating the claim that Donovan’s First Amendment

rights have been violated, we have a “constitutional duty to

conduct an independent evaluation of the record as a

whole, without deference to the trial court.” Christ’s Bride

Ministries v. SEPTA, 148 F.3d 242, 247 (3d Cir. 1998)

(citation omitted).

B.

The First Amendment provides that “Congress shall make

no law . . . abridging the freedom of speech . . . or the right

22

of the people to peacefully assemble.” U.S. CONST. amend I.

Religious worship and discussion “are forms of speech and

association protected by the First Amendment.” Widmar v.

Vincent, 454 U.S. 263, 269 (1981).

Generally, the government may limit speech that takes

place on its own property without running afoul of the First

Amendment. Lamb’s Chapel v. Center Moriches Union Free

Sch. Dist., 580 U.S. 384, 390 (1993); Christ’s Bride, 148

F.3d at 247. Where, however, the property at issue is a

traditional public forum or a forum designed as public by

the government, the First Amendment hinders the

government’s ability to restrict speech. Perry Educ. Ass’n v.

Perry Local Educators Ass’n, 460 U.S. 37, 45-46 (1983);

Christ’s Bride, 148 F.3d at 247. A limited public forum —

a subcategory of the designated public forum — “is created

when the government opens a nonpublic forum but limits

the expressive activity to certain kinds of speakers or to the

discussion of certain kinds of subjects.” Kreimer v. Bureau

of Police, 958 F.2d 1242, 1246-1247 (3d Cir. 1992) (citation

omitted). Donovan and Appellees agree that the PAHS

activity period is a limited public forum, and we will treat

the period as such.

Although the government may indeed restrict the limited

public forum to certain subjects and certain speakers, the

government “may not discriminate against speech on the

basis of viewpoint, and the restriction must be reasonable

in light of the purpose served by the forum.” Good News

Club v. Milford Cent. Sch., 533 U.S. 98, 106-107 (2001).

With regard to viewpoint restrictions, “speech discussing

otherwise permissible subjects cannot be excluded from a

limited public forum on the ground that the subject is

discussed from a religious viewpoint.” Id. at 112; see also

Rosenberger v. Rector & Visitors of the Univ. of Va., 515

U.S. 819 (1995) (holding that a university engaged in

improper viewpoint discrimination when it denied student

activities funds to a student magazine addressing public

policy issues from a Christian perspective); Lamb’s Chapel

v. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)

(holding that a school’s refusal to permit an organization

access to school facilities at night to show a film about

family issues from a religious perspective constituted

impermissible viewpoint discrimination).

23

FISH is a group that discusses current issues from a

biblical perspective, and school officials denied the club

equal access to meet on school premises during the activity

period solely because of the club’s religious nature.

Accordingly, we hold that the exclusion constitutes

viewpoint discrimination. “Because the restriction is

viewpoint discriminatory, we need not decide whether it is

unreasonable in light of the purposes served by the forum.”

Good News Club, 533 U.S. at 107.

C.

The district court concluded that PAHS’s “interest in

protecting free speech within the context of the activity

period as it exists at . . . PAHS is most likely outweighed

by” an Establishment Clause violation, if the Bible group

were permitted to meet. Donovan v. Punxsutawney Area

Sch. Bd., No. 02-205, at 10 (W.D. Pa. Oct. 10, 2002). We

disagree.

1.

Although government interest in avoiding an

Establishment Clause violation may be characterized as

compelling and thus justify content-based discrimination,

Widmar v. Vincent, 454 U.S. 263, 271 (1981), it is “not clear

whether a State’s interest in avoiding an Establishment

Clause violation would justify viewpoint discrimination.”

Good News Club, 533 U.S. at 113. We need not confront

this thorny issue in this case because the school has no

valid Establishment Clause interest.

The Supreme Court has repeatedly rejected

Establishment Clause defenses in free speech cases. See,

e.g., Good News Club, 533 U.S. at 113; Lamb’s Chapel, 508

U.S. at 395; Widmar, 454 U.S. at 272-273. To determine

whether such a defense is viable, we first consider an

action’s “ ‘neutrality toward religion.’ ” Good News Club, 533

U.S. at 114 (quoting Rosenberger, 515 U.S. at 839).

Appellees do not take issue with this aspect of the inquiry

and implicitly agree that “allowing the Club to speak on

school grounds would ensure neutrality, not threaten it.”

Good News Club, 533 U.S. at 114.

24

2.

Donovan and Appellees come to blows, however, over

whether “a meeting of a religious group during the activity

period which occurs during instructional hours where

attendance is compulsory, when conducted in the constant

presence of school[-]appointed monitors, carries with it the

impression of official approval and endorsement [of

religion].” Donovan v. Punxsutawney Area Sch. Bd., No. 02-

205, at 9 (W.D. Pa. Oct. 10, 2002). The district court

believed that it did, but we find the argument

unpersuasive.

In Good News Club, the Supreme Court leaned heavily on

the fact that after-school meetings by the religious club at

issue in that case “would not implicate activity by the

school during the school day” to resolve that students

would not perceive that the government had endorsed

religion by permitting the group to meet. 533 U.S. at 115 &

n.7. Searching valiantly for a potential loophole, Appellees

seize on Illinois ex rel. McCollum v. Bd. of Educ. of Sch. Dist.

No. 71, Champaign City, 333 U.S. 203 (1948), for the

proposition that the availability of religious discussion

during a time of compulsory attendance unconstitutionally

advances religion. In McCollum, the school district excused

students from their normal classroom study during the

regular schoolday to attend classes taught by sectarian

religious teachers, who were subject to approval by the

school superintendent. Id. at 209. Under these

circumstances, this Court found it relevant that “the

operation of the State’s compulsory education system . . .

assisted and was integrated with the program of religious

instruction carried on by separate religious sects.” Id.

In the present case, in contrast, PAHS simply permits

students to participate in a broad range of student

activities during noninstructional time, and Donovan

merely seeks an equal opportunity to express herself along

with other like-minded students. The varied options

available to PAHS students, the voluntariness of student

participation, and the fact that any religious speech

engaged in would be initiated by students themselves

militate against any government endorsement of or

25

entanglement with religion if FISH were to have been able

to meet during the activity period.

With regard to whether the presence of school monitors

at a Bible club meeting would carry with it the imprimatur

of a government’s endorsement of religion, we note that the

Equal Access Act prohibits monitors from participating in

religious meetings, as well as school sponsorship of those

meetings. 20 U.S.C. §§ 4071(c)(2)-4071(c)(5). “[C]ustodial

oversight of the student-initiated religious group, merely to

ensure order and good behavior, does not impermissibly

entangle government in the day-to-day surveillance or

administration of religious activities.” Mergens, 496 U.S. at

253 (citing Tony and Susan Alamo Foundation v. Sec’y of

Labor, 471 U.S. 290, 305-306 (1985)).

Accordingly, we conclude that permitting FISH to meet

during the PAHS activity period would not have violated the

Establishment Clause.

* * * * *

We hold that the PAHS activity period constitutes

“noninstructional time” under the EAA. PAHS triggered the

creation of a limited open forum and the application of the

EAA when it allowed noncurriculum related groups to meet

before actual classroom instruction began. Moreover, when

PAHS denied the Bible club access to the school’s limited

public forum on the ground that the Club was religious in

nature, it discriminated against the club because of its

religious viewpoint in violation of the Free Speech Clause of

the First Amendment. Because PAHS has not raised a valid

Establishment Clause claim, we do not address the

question whether such a claim could excuse PAHS’s

viewpoint discrimination.

We reverse the district court’s order dismissing all claims

and remand for determination of damages and attorney’s

fees with a direction that the portion dealing with injunctive

and declaratory relief be vacated under the teachings of

United States v. Munsingwear, 340 U.S. 36, 39 (1950).

We have considered all contentions presented by the

parties and conclude that no further discussion is

necessary.

26

We will VACATE that portion of the District Court’s

judgment dealing with declaratory and injunctive relief and

REVERSE and REMAND the portion dealing with money

damages and the possibility of attorney’s fees for further

proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit