UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1574
AMERICAN HUMANIST ASSOCIATION; JOHN DOE and JANE DOE, as
parents and next friends of their minor child; JILL DOE,
Plaintiffs - Appellants,
v.
GREENVILLE COUNTY SCHOOL DISTRICT,
Defendant – Appellee,
and
BURKE ROYSTER, in his individual capacity; JENNIFER GIBSON,
in her individual capacity,
Defendants,
-------------------------
SOUTH CAROLINA DEPARTMENT OF EDUCATION; SENATOR GEORGE E.
“CHIP” CAMPSEN, III
Amici Supporting Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Bruce H. Hendricks, District
Judge. (6:13-cv-02471-BHH)
Argued: May 10, 2016 Decided: June 21, 2016
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Dismissed in part, vacated in part, and remanded with
instructions by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Shedd and Judge Duncan joined.
ARGUED: Monica Lynn Miller, AMERICAN HUMANIST ASSOCIATION,
Washington, D.C., for Appellants. Thomas Kennedy Barlow, CHILDS
& HALLIGAN, P.A., Columbia, South Carolina, for Appellee. ON
BRIEF: Aaron Joel Kozloski, CAPITOL COUNSEL, LLC, Lexington,
South Carolina, for Appellants. John M. Reagle, CHILDS &
HALLIGAN, P.A., Columbia, South Carolina; R. Douglas Webb,
General Counsel, GREENVILLE COUNTY SCHOOL DISTRICT, Greenville,
South Carolina, for Appellee. Jeremy D. Tedesco, Scottsdale,
Arizona, David A. Cortman, J. Matthew Sharp, Rory T. Gray,
ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia, for Amicus
Senator George E. Campsen III. Miles E. Coleman, Jay T.
Thompson, NELSON MULLINS RILEY & SCARBOROUGH, LLP, Columbia,
South Carolina, for Amicus South Carolina Department of
Education.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
Plaintiffs, the American Humanist Association (AHA), AHA
members John and Jane Doe, and the Does’ daughter Jill, filed
this action against the Greenville County South Carolina School
District (the school district, or the district), alleging that
certain policies and practices of the district violated the
Establishment Clause of the First Amendment. The plaintiffs
claimed that the school district unlawfully endorsed and
promoted religion by its past practices of including school-
sponsored prayer at graduation ceremonies and holding those
events in Christian-based venues. The plaintiffs also
challenged as unconstitutional the district’s current policies,
which prohibit school-sponsored prayer but allow prayer
initiated and led by students, and restrict the appearance of
religious iconography when school events are held in religious
venues.
With respect to the school district’s past practices, the
district court held that the past practice of school-sponsored
prayer at graduation events was unconstitutional, and the school
district does not challenge this holding on appeal. The
district court failed to address the school district’s past use
of religious venues for graduation ceremonies.
With regard to the current policies, the district court
held that the revised policy permitting student-initiated prayer
3
at graduation events is constitutional, but declined on the
ground of mootness to address the constitutionality of the
revised policy concerning the use of religious venues.
After the plaintiffs filed this appeal from the district
court’s judgment, the school district filed a motion to dismiss
the appeal for lack of subject matter jurisdiction based on the
Doe family’s relocation to another state. For the reasons that
follow, we grant in part and deny in part the school district’s
motion to dismiss the appeal. We vacate a portion of the
district court’s judgment, and remand the case for further
proceedings consistent with this decision.
I.
Since at least 1951, Christian prayers have been included
in graduation ceremonies at Mountain View Elementary School
(MVES) and at other public schools in the district. On May 30,
2013, Jill Doe, a fifth-grade student at MVES, and her parents
attended the school’s annual graduation ceremony for fifth
graders (the 2013 ceremony). The 2013 ceremony was held in the
Turner Chapel at North Greenville University, a Christian
institution affiliated with the Southern Baptist Convention.
The chapel usually serves as a place of worship, and has a cross
affixed to the podium and stained glass windows depicting
Christian imagery.
4
During the 2013 ceremony, two students delivered Christian
prayers, which were listed on the printed program for the event.
MVES school officials had selected the students to deliver the
prayers, and had approved the prayers’ content.
In June 2013, AHA sent a letter to the school district
expressing concern about school sponsorship of sectarian
graduation ceremonies. The school district responded in a
letter describing two major revisions that it had implemented
with regard to its school graduation programs.
In its first policy change, the district represented that
it would not prohibit prayers at school events, but explained
that any such prayers would be given “under different
circumstances” from the 2013 ceremony, namely, that prayers
would be permitted “as long as the prayer or message is student-
led and initiated and does not create a disturbance to the
event” (the revised prayer policy). The second revision
directed that if a religious venue would be used for future MVES
events, the school district would “ensure that the space . . .
is devoid of religious iconography that would lead a reasonable
observer to believe that the [d]istrict is endorsing religion”
(the revised chapel policy). In addition, the letter stated
that the district would “continue to monitor events at [MVES] as
well as at other schools to ensure that these policies and
practices are adhered to throughout the [d]istrict.”
5
In September 2013, the plaintiffs filed suit against the
school district, alleging claims under 42 U.S.C. § 1983 for
violations of the Establishment Clause. 1 The plaintiffs’
allegations included that plaintiff AHA is a membership
organization working to preserve the separation of church and
state, and that AHA’s members included plaintiffs John and Jane
Doe and other parents of children who attend schools in the
district.
The plaintiffs alleged that at the 2013 ceremony, Jill Doe
felt coerced to participate in school-sponsored religious
activity. The plaintiffs also alleged that Jill and her
siblings wished to attend future graduation ceremonies and
school events in the district, but did not want to be subjected
to sectarian prayers at events conducted in religious venues.
Based on these allegations, the plaintiffs asserted claims for
damages, and requested a declaratory judgment that the school
district’s past practices of endorsing prayers at school events
(the past prayer claim) and of holding school events in
religious venues (the past chapel claim) violated the
Establishment Clause. The plaintiffs also sought a declaration
that the revised prayer and chapel policies are unconstitutional
1
The plaintiffs originally named Burke Royster, district
superintendent, and Jennifer Gibson, MVES principal, as
defendants. However, they later were dismissed from the suit.
6
and requested a permanent injunction prohibiting all prayer at
school events (the prospective prayer claim) and barring the use
of any religious venue for school events (the prospective chapel
claim).
After the parties filed cross motions for summary judgment,
the district court issued its decisions. 2 With respect to the
past prayer claim, the court concluded that the school
district’s practice of including prayer at school events, which
involved selection of students to deliver the prayers and
approval of the content of those prayers, was unconstitutional.
The court awarded the plaintiffs $1 in nominal damages for the
past prayer claim, but did not address the past chapel claim.
With respect to the prospective prayer claim, the court
held in favor of the school district. The court concluded that
the revised policy permitting prayer led and initiated by
students was constitutional, because the policy had “no
religious purpose or effect” and did not “improperly entangle
2
Before filing motions for summary judgment, the plaintiffs
moved for a preliminary injunction and to continue to keep their
true identities under seal. After a hearing, the district court
denied both motions without written order. Am. Humanist Ass’n
v. Greenville Cty. Sch. Dist., 571 F. App’x 250 (4th Cir. 2014).
Because the court provided no analysis, this Court remanded the
case for reconsideration. Id. On remand, the court granted the
unopposed motion to proceed anonymously. The court denied the
motion for preliminary injunction and allowed the case to
proceed to a consideration of the merits before the end of May
2015, when graduations next would take place.
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the State with religion.” Accordingly, the court declined to
grant injunctive relief prohibiting all prayer from future
school events in the district.
The court also held in favor of the school district on the
prospective chapel claim and denied injunctive relief. During
the course of litigation, the Doe family had moved within the
school district. Because their children’s new schools had not
previously used religious venues for school events, the district
court concluded that the claim was moot on the ground that the
plaintiffs lacked a reasonable expectation of future injury. 3
After the plaintiffs timely filed this appeal from the
district court’s judgment, the Doe family moved to Alabama. As
a result, the school district filed a motion to dismiss in this
Court asserting that the entire appeal is now moot.
II.
Before we can consider the arguments that the plaintiffs
raise on appeal, we must address the school district’s
contention that this appeal is moot. The district argues that
because the Doe family moved to Alabama, the plaintiffs no
longer have an interest in the outcome of this appeal. Thus,
3 The district court also rejected the plaintiffs’ assertion
of taxpayer standing.
8
according to the school district, this Court lacks subject
matter jurisdiction and is required to dismiss the appeal.
In considering the school district’s mootness argument, we
first observe that mootness principles derive from the
requirement in Article III of the Constitution that federal
courts may adjudicate only those disputes involving “a case or
controversy.” Williams v. Ozmint, 716 F.3d 801, 808 (4th Cir.
2013) (citation omitted). The case-or-controversy requirement
applies to all stages of a case in the federal courts. Id. “It
is not enough that a dispute was very much alive when the suit
was filed, but the parties must continue to have a
particularized, concrete stake in the outcome of the case
through all stages of litigation.” Id. (quoting Lewis v. Cont’l
Bank Corp., 494 U.S. 472, 477-79 (1990)) (internal quotation
marks and alterations omitted).
This requirement is of paramount importance, because courts
do not have “authority to give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.”
Church of Scientology of Cal. v. United States, 506 U.S. 9, 12
(1992) (citation and quotation marks omitted). A case becomes
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). “A change in
9
factual circumstances can moot a case on appeal, such as when .
. . an event occurs that makes it impossible for the [appellate]
court to grant any effectual relief to the plaintiff.”
Williams, 716 F.3d at 809.
When a student challenges the constitutionality of school
policies, her claims for injunctive relief generally become moot
upon her graduation, because she lacks an interest in the future
application of school policy. Mellen v. Bunting, 327 F.3d 355,
364 (4th Cir. 2003). However, a student who graduates typically
continues to have a live claim for damages against a school for
a past constitutional violation. Id. at 365; see Rendelman v.
Rouse, 569 F.3d 182, 187 (4th Cir. 2009) (even if a plaintiff’s
claim for injunctive relief becomes moot, the action is not moot
if she may still be entitled to nominal damages).
In the present case, the plaintiffs have asserted claims
for both injunctive relief and damages. They argue that the
district court erred in entering summary judgment for the school
district on the prospective prayer and prospective chapel
claims, contending that they were entitled to injunctive relief
because the district’s revised policies still permit school-
sponsored religious activity barred by the Establishment Clause.
The plaintiffs also argue that the district court erred in
failing to address the past chapel claim, asserting that they
were entitled to nominal damages based on the district’s
10
unconstitutional use of religious venues for school events. We
therefore consider these different claims separately to
determine whether live controversies remain on appeal despite
the Doe family’s move to Alabama. 4
A. Claims for Injunctive Relief
We first address the vitality of the plaintiffs’
prospective prayer and prospective chapel claims, in which the
plaintiffs seek a permanent injunction prohibiting all prayer
and use of religious venues for the district’s school events.
We initially conclude that the Does’ interest in such future
remedies has been mooted by their move to Alabama. See Mellen,
327 F.3d at 364. Because the Does’ children no longer attend
school in Greenville County, they will not be subject to injury
from implementation of the revised prayer and chapel policies.
We therefore grant the school district’s motion to dismiss with
respect to the prospective prayer and prospective chapel claims
brought by the Does. 5
4 Because the school district did not appeal the court’s
holding that the district’s past practice of permitting school-
sponsored prayer at school events was unconstitutional, the past
prayer claim is not before us.
5 We reject the plaintiffs’ contention that the Does’
prospective prayer and prospective chapel claims are “capable of
repetition, yet evading review,” qualifying for an exception to
the mootness doctrine. See Mellen, 327 F.3d at 364 (explaining
that graduated students do not ordinarily qualify for this
(Continued)
11
AHA contends, nevertheless, that it continues to maintain
an interest in obtaining injunctive relief based on its
representation of other AHA members. In support of its
position, AHA filed in this Court affidavits from several
current members, who are parents of children attending district
schools that have held events at religious venues in which
prayers have been recited. Thus, AHA asserts that it retains a
live interest in the outcome of the prospective prayer and
prospective chapel claims based on its role representing
members’ interests.
In response, the school district contends that AHA is
barred from attempting to establish representational standing on
appeal. Citing Summers v. Earth Island Institute, 555 U.S. 488,
498 (2009), the school district argues that to demonstrate
standing for purposes of this appeal AHA was required, but
failed, to establish that it maintained representational
standing at the time of the district court’s judgment. The
school district therefore argues that we should not consider
AHA’s submission of new affidavits on appeal, and must dismiss
AHA’s appeal with respect to the prospective prayer and chapel
claims.
exception because after graduation, they will not be subjected
to the school’s policies).
12
In considering this issue, we observe that a party invoking
federal jurisdiction generally bears the burden to establish
standing by showing that it suffered an injury that is fairly
traceable to the challenged action and that can be redressed by
the court’s decision. Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). An
organization ordinarily can establish standing on behalf of its
members when (1) its members “would have standing to sue in
[their] own right”; (2) “the organization seeks to protect
interests” consistent with “the organization’s purpose;” and (3)
“neither the claim asserted nor the relief sought requires the
participation of individual members in the lawsuit.” Friends of
the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149,
155 (4th Cir. 2000) (en banc). 6
In Summers, the plaintiffs, a group of environmental
organizations, were unable to establish standing on behalf of
their members in the district court, because they could not
demonstrate any particularized harm suffered by an organization
member. 555 U.S. at 495. The Supreme Court held that, because
6 Generally, plaintiffs can establish standing in
Establishment Clause cases when the plaintiffs are “spiritually
affronted as a result of direct and unwelcome contact with
alleged religious establishment within their community.” Moss
v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 605 (4th
Cir. 2012) (citation and quotation marks omitted).
13
the plaintiffs were unable to “me[et] the challenge to their
standing at the time of judgment,” the plaintiffs “could not
remedy the defect retroactively” by supplementing the record
with additional evidence. Id. at 495 n.*; see Swanson Grp. Mfg.
LLC v. Jewell, 790 F.3d 235, 240-41 (D.C. Cir. 2015) (in
determining whether plaintiffs had standing, the court would not
consider on appeal supplemental declarations filed after entry
of the judgment).
Mindful of these principles, we turn to consider whether
AHA established standing at the time of judgment in the district
court. We address each claim for injunctive relief separately.
i. Prospective Prayer Claim
The district court addressed the merits of the plaintiffs’
prospective prayer claim. The court held that the revised
prayer policy was constitutional and, thus, denied the
plaintiffs’ request for injunctive relief prohibiting all prayer
at school events. The court did not discern, nor did the school
district raise, any issue regarding the standing of the Does or
of AHA to establish a potential harm based on future application
of the revised prayer policy.
At the time of the court’s judgment, the Doe children
attended schools in the district that previously had endorsed
prayer at school events and that were subject to the revised
prayer policy. AHA therefore could have “met a challenge to”
14
standing at the time of judgment because AHA showed that at
least one of its members, John Doe or Jane Doe, would suffer
harm based on the revised prayer policy. See Summers, 555 U.S.
at 495 n.*. Because the Doe family did not move to Alabama
until after the district court entered judgment in this case,
AHA was not required to establish standing before entry of
judgment based on the interests of its other members.
Accordingly, we hold that AHA is not barred from seeking to
establish that it continues to have representational standing to
challenge the prospective prayer claim.
We decline, however, to review AHA’s supplementary
affidavits at this time to determine whether AHA continues to
maintain an interest in obtaining injunctive relief based on its
representation of other member parents in the district.
Instead, because issues of fact arising from those affidavits
may require resolution in the first instance, we remand the
issue to the district court for jurisdictional discovery. See
Nat. Res. Defense Council v. Pena, 147 F.3d 1012, 1024 (D.C.
Cir. 1998) (remanding for jurisdictional discovery when an issue
arose for the first time on appeal, and the record suggested one
manner in which the party “may be able to establish” standing).
For these reasons, we deny the school district’s motion to
dismiss the prospective prayer claim by AHA. We vacate and
remand the portion of the district court’s judgment addressing
15
this claim. On remand, the court should conduct jurisdictional
discovery to determine whether AHA currently maintains standing
to pursue this claim, based on the interests of its other
members. If AHA continues to have a live claim, the court
should also consider whether its prior judgment on the
prospective prayer claim should be amended in any respect.
ii. Prospective Chapel Claim
In contrast to the prospective prayer claim, the district
court did not address the merits of the prospective chapel
claim. The school district asserted at the summary judgment
stage that this claim was moot, because the Doe children had
enrolled in other schools in Greenville County, and none would
be attending MVES. AHA did not attempt at that time to
establish standing based on its representation of other member
parents.
The district court concluded that the plaintiffs failed to
establish a potential injury from application of the revised
chapel policy. The court found that (1) the Doe children no
longer were enrolled in or would attend MVES in the future, and
had moved to schools in the district that had not used Turner
Chapel or other religious facilities for school events; and (2)
the plaintiffs failed to present evidence that the new schools
attended by the Doe children were likely to use such religious
facilities in the future. The record before us supports the
16
district court’s factual findings and conclusion that the Does
failed to establish a likelihood of injury from future
application of the revised chapel policy.
Thus, because at the time of the district court’s judgment,
AHA had not shown that the Does or any other AHA members were
likely to suffer injury from application of the revised chapel
policy, AHA failed to establish standing in the district court
to challenge that policy. 7 And, under Summers, AHA is barred
from remedying this defect on appeal. See 555 U.S. at 495 n.*.
Accordingly, we grant the school district’s motion to dismiss
AHA’s prospective chapel claim. 8
B. Claim for Damages
Finally, we address the plaintiffs’ past chapel claim. The
plaintiffs argue that the Doe family’s move to Alabama does not
moot their past injury claim based on the use of Turner Chapel
for the 2013 ceremony, because the Does have a continued
7We also agree with the district court’s conclusion that
the plaintiffs lacked taxpayer standing.
8We do not read the district court’s holding of mootness
regarding the revised chapel policy as precluding a future
constitutional challenge by AHA to that policy upon AHA’s
demonstration of representational standing. See S. Walk at
Broadlands Homeowner’s Ass’n v. Openband at Broadlands, 713 F.3d
175, 185 (4th Cir. 2013) (“dismissal for lack of standing – or
any other defect in subject matter jurisdiction - must be one
without prejudice” under Fed. R. Civ. P. 41(b)).
17
interest in recovering nominal damages for this alleged
constitutional violation.
In response, the school district argues generally that this
claim is moot, but fails to provide any analysis in support of
its argument. Alternatively, the district submits that the
claim should be dismissed because the plaintiffs failed to
allege a separate claim for nominal damages arising from the use
of Turner Chapel in 2013. The school district contends that the
plaintiffs instead requested and received nominal damages based
on all state-sponsored religious conduct surrounding the 2013
ceremony. We disagree with the school district’s argument.
Initially, we conclude that the plaintiffs continue to have
an interest in the outcome of the past chapel claim despite the
Does’ move to Alabama. The plaintiffs’ claim for nominal
damages based on a prior constitutional violation is not moot
because the plaintiffs’ injury was complete at the time the
violation occurred. See Central Radio v. City of Norfolk, 811
F.3d 625, 632 (4th Cir. 2016).
Distinct from the past prayer claim, the plaintiffs
adequately alleged an independent claim for nominal damages
based on the district’s past practices of using religious venues
for school events, including the use of Turner Chapel for the
2013 ceremony. The plaintiffs’ complaint included requests for
a declaratory judgment with respect to both past practices. The
18
complaint also included a general request for damages or other
relief deemed appropriate by the district court.
In their summary judgment pleadings, the plaintiffs
requested nominal damages against the school district for
violating their rights based both on the prayer policy and the
chapel policy in place at the time of the 2013 ceremony. The
district court, in awarding the plaintiffs $1 in nominal damages
and granting summary judgment in favor of the plaintiffs, stated
that the court’s decision was based on the past prayer claim.
The court made no reference to the past chapel claim in stating
its damages award. We therefore conclude that, although the
plaintiffs asserted an independent constitutional violation in
their past chapel claim, the district court did not award any
damages for that claim. Contra Fox v. Bd. of Trs., 42 F.3d 135,
141-42 (2d Cir. 1994) (rejecting claim for nominal damages when
no request for monetary damages was made in the complaint).
Based on this record, we deny the school district’s motion
to dismiss the plaintiffs’ past chapel claim. Because the
district court failed to address the merits of that claim, we
remand for consideration by the district court in the first
instance. See Dandridge v. Williams, 397 U.S. 471, 475 n.6
(1970) (when the trial court has expressed no views on a
controlling question, it may be appropriate to remand the case
19
rather than address the merits of that question first on
appeal).
III.
In conclusion, regarding the prospective prayer claim, we
grant the school district’s motion to dismiss the appeal with
respect to the Does, and deny the motion to dismiss the appeal
with respect to AHA. We vacate and remand for jurisdictional
discovery on this claim, and for amendment of the court’s prior
judgment if necessary.
Regarding the prospective chapel claim, we dismiss the
appeal with respect to all plaintiffs. Finally, regarding the
past chapel claim, we deny the school district’s motion to
dismiss the appeal, and remand for the district court’s
consideration of the merits of this claim in the first instance.
DISMISSED IN PART;
VACATED IN PART;
REMANDED WITH INSTRUCTIONS
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