This case on appeal is styled as a class action. It purports to raise constitutional issues of free speech, racial discrimination and violation of the Establishment Clause of the Constitution of the United States. A synopsis of the events surrounding this litigation shows that there may well be involved constitutional questions of the magnitude alleged.
Appellant Charles Caldwell, a Negro, contends that his constitutional rights (numerous constitutionally guaranteed rights have been allegedly infringed)' were violated when he was suspended from participating in high school band activities at Lebanon High School because he quit playing his instrument and left the gymnasium when the pep band he was in started playing “Dixie” at a pep rally. Appellant Mae Caldwell, Charles’ mother, alleges she was discharged from her job as a teacher’s aide at the high school in retaliation for the support she showed her son in his protest. Apparently she was standing at the entrance of the gymnasium, and when her son left she too walked out. Finally, both appellants challenge the constitutionality of certain Christian religious services conducted by the high school during regular school hours.
The District Court proceeded directly to the merits of the case and following trial held that: Charles Caldwell’s expulsion from band activities was a legitimate disciplinary dismissal made pursuant to a valid band regulation; Mae Caldwell’s services were “terminated due to her unsatisfactory work” and not as a *216result of her supporting her son’s protest; and that appellants lacked standing to challenge the constitutionality of the school conducting religious services. (This issue was presented for the District Court’s consideration in a supplemental amendment to the original complaint. It seems to have been added as an afterthought. Because of the District Court’s decision that appellants lacked standing, the merits of the question were not reached.)
In considering this appeal, it must be first determined whether, in fact, this action is properly brought as a class action. The District Court did not determine whether the action should have been maintained as a class action and enter the order required by Rule 23(e) of the Federal Rules of Civil Procedure. Therefore, for the purposes of jurisdiction, procedural and substantive due process and to determine the binding effect of any judgment in this matter, it must be decided if this is a proper class action. There is some question as to the correct appellate procedure to be followed when there has not previously been- made a determination of whether an action is maintainable as a class action. However, the importance of the notice requirements of Rule 23 and the effect a judgment will have on absent members of the so-called class makes it imperative that the propriety of maintaining a class action be examined. If this issue has not been considered before the action comes to a reviewing court, it would appear the better practice, for reasons of judicial economy, for the appellate court to make such a determination on the basis of the record before it, rather than remanding for a decision on this question.
Appellants’ complaint states that they meet the prerequisites for maintaining a class action contained in Federal Rules of Civil Procedure 23(a) and 23(b) (1), (2) and (3). Thus, they have alleged the broadest possible type of class representation.1 The class of individuals appellants purport to represent in this litigation are all the Negroes in the State of Tennessee. Furthermore, appellants have sought to bind by any determination in this matter not only the specifically named defendants but the class of “all public school band instructors, superintendent of schools, public high school principals, and boards of education and their members in the State of Tennessee.”
To decide whether this action is maintainable as a class action, the character of the interests sought to be protected by the named parties in this action must be examined and compared with those interests allegedly held in common by the group of individuals the named parties seek to represent2. The gravamen of appellant Charles Caldwell’s cause of action is denial of his First Amendment right to free speech.3 ****Allegations are made throughout the complaint that Charles’ dismissal resulted from and was a deliberate act of racial discrimination. A reading of the complaint and a study of the facts surround*217ing this litigation reveal that the incident out of which this dispute arose obviously had racial overtones. However, conduct amounting to racial discrimination and conduct which denotes racial hostility or prejudices are not identical in the eyes of the law. While prejudice and hostility based on race are moral wrongs, unless they take concrete shape in the form of an unfair or injurious distinction (discrimination), they are not legal wrongs. Mere allegations of racial discrimination without a basis in objective fact do not make out a cause for relief on these grounds. Charles Caldwell’s complaint alleges and the thrust of his proof was designed to prove that he was disciplined for exercising his First Amendment right of free speech. He has not made out a case for the proposition that his disciplining was a result of racial discrimination. Similarly, Mrs. Caldwell’s dismissal, while alleged to be a “retaliatory act of racial discrnnination^a fair reading of her complaint indieates'that if the allegations/are true she was discharged for exercising her right to free speech by>dngaging in conduct expressing her .support of Charles’ protest.
The fact that these were Negroes who were allegedly exercising their freedom of speech on a subject having racial characteristics tends to blur the true nature of the high school officials’ conduct drawn into question by this litigation. Stripping away all overtones of race involved here, which in and of themselves do not amount to racial discrimination, this controversy can be recognized for what it is — a dispute over alleged infringement of First Amendment rights.
This leads to the issue involved, that is, determining whether this action is properly maintainable as a class action. There is no doubt that if this were an action to remedy racial discrimination in education or employment practices, appellants could exert their rights to be free from injurious and arbitrary distinctions based on race through the class action device. See Whitmyer v. Lincoln Parish School Board, 75 F.Supp. 686 (D.C.1948) and Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Brunson v. Board of Trustees of School District No. 1 of Clarendon County, South Carolina, 311 F.2d 107 (4th Cir. 1962). In that type of case, appellants would be able to represent the class of all Negroes in the State of Tennessee who are similarly situated. However, here we have two plaintiffs attempting to enforce their individual rights in a form which makes them representative of a select segment of the population of a state, the Negro population, when the entire citizenry are equally guaranteed these rights. As an abstract and general proposition, these appellants have a guaranteed right or claim which is common and shared by all citizens of this country. However, on an individual and more concrete level, the rights appellants are attempting to enforce are separate and distinguishable from the broad and amorphous general right to free speech guaranteed to all citizens of the United States. In short, we hold that the rights appellants are allegedly attempting to enforce in this action are individual rights arising out of a unique fact situation, and the class action technique is not designed to be used in these types of cases.
These same observations apply with equal force to the defendants’ so-called “class”. Here the requirement that the defenses of the representative parties be typical of those of the class cannot be met. Nor can it be said that there are questions of law or fact common or shared by the named defendants, and the much larger class they are supposed to represent in this litigation. At best, appellants can only make defendants those individuals specifically named in the complaint.
The effect of this determination of this question is to deny the named plaintiffs and defendants any representative capacity for unnamed members of their so-called class. Thus, the parties in this litigation are reduced to two plaintiffs and ten defendants. Since eliminating the class action name given *218to this action does not necessarily result in loss of the federal jurisdiction, see Harris v. Palm Springs Alpine Estates, 329 F.2d 909 (9th Cir. 1964), an issue which might affect the power to render a decision in this matter must now be considered.
It appears that Charles Caldwell and his family have moved from Lebanon to Nashville, Tennessee. Charles is presently enrolled in a high school where “Dixie” is either not played or he is not required to play it. Having had these facts presented, it must be considered whether this conduct of one of the litigants, subsequent to initiation of this lawsuit, moots the action.
While Charles’ complaint prays for declaratory and injunctive relief, it is clear that this does not affect the requirement that a federal court should not decide hypothetical or mooted questions. Aetna Life Insurance Company of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937); Watkins v. Chicago Housing Authority, 406 F.2d 1234 (7th Cir. 1969). The test of whether a controversy is moot involves several considerations. The absence or presence of any single factor is not necessarily determinative of whether á justiciable controversy exists. In United States v. Alaska Steamship Company, 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920), it is stated that a case becomes moot when “by an act of the parties, or a subsequent law, the existing controversy has come to an end * * *.” and a court is not empowered “to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it.” In United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947), the constitutionality of the Hatch Act passed by Congress was drawn into question. On the question of mootness the Court observed that “[t]he power of courts * * * to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference.” (Emphasis supplied). Finally, it is stated that a controversy is moot when a court cannot render an effective decree responsive to the complaint, Singleton v. Board of Commissioners of State Institutions, 356 F.2d 771 (5th Cir. 1966), because there is “no longer a subject matter on which the judgment * * * [can] operate.” St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 911, 87 L.Ed. 1199 (1943).
Charles Caldwell is no longer a student in the Lebanon School system. His individual right to free speech which was allegedly infringed by the Lebanon High School officials can no longer be interfered with by these defendants. At best, an extremely remote chance exists that the high school officials’ alleged wrongful conduct will be repeated and directed at Charles to deny him his right to free speech. See United States v. W. T. Grant Company, 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). For all intents and purposes, the controversy between Charles Caldwell and certain named officials of the Lebanon School system has come to an end. Any decision or decree made as to these parties cannot now affect their relative positions. It would serve no purpose to order Charles to be reinstated in the band as he is no longer even a part of the school system. While a declaration of his rights might be undertaken, this would merely be a hypothetical ruling as between these parties, since Charles stood alone in this litigation and not as a representative of any class of individual. In addition, although this matter has generated public concern, the nature of the case itself, that is, a single individual alleging infringement of his right to free speech, does not make this dispute one of a “general public interest” requiring a decision even if many attributes of mootness exist. . See United States v. W. T. Grant Company, supra at page 632, 73 S.Ct. 894. It is concluded, therefore, that Charles’ claim raised in this action has been mooted and there is *219no need to reach the merits of his appeal.
While appellant Mae Caldwell also is no longer a part of the Lebanon High School system, she has prayed for monetary relief for lost wages resulting from her alleged wrongful discharge. Thus, her action is a viable cause of action and the merits of her appeal must be considered.
As previously discussed, Mrs. Caldwell’s complaint contends that her dismissal from her position as a teacher’s aide was a “retaliatory act of racial discrimination.” It was alleged that her dismissal “violated her First Amendment right to freedom of expression, her rights guaranteed under the Ninth Amendment, the right not to have her son subjected to a badge or indicia of slavery as forbidden by the Thirteenth Amendment, and the right to due process and equal protection of the laws under the Fourteenth Amendment * * * ”
Thus, a problem is presented of whether this dismissal was a result of 1.) racial discrimination, or 2.) because Mrs. Caldwell supported her son in his protest, or 3.) because she was incompetent as a teacher’s aide, or 4.) a portion or all of the above. While the record is not completely devoid of racial implications in Mrs. Caldwell’s dismissal, the District Court found that racial discrimination was not the cause of her being discharged. It is clear that she was hired for the teacher’s aide job with full knowledge that she was a Negro and it seems somewhat illogical that she would be fired solely because she was a Negro.
Appellant’s case is stronger for the proposition that she was discharged in retaliation for the support she showed her son in his protest. If this was the case it raises questions concerning the permissive scope of control an employer can exercise over an employee. That is, can an employer, as a prerequisite of employment, require that an employee refrain during actual work periods from certain conduct otherwise constitutionally protected and legitimate. While it would appear that there arises from the contractual relationship of employer-employee a right in the employer to place reasonable restrictions upon an employee’s sphere of permissible conduct during actual work period, on the basis of the record in this case, it is not necessary to reach this broader question. The District Court found that Mrs. Caldwell’s dismissal was prompted by the fact that she performed inadequately as a teacher’s aide. There was testimony that she typed poorly, spent excessive time in the lounge area and took unduly long lunch breaks. In addition, there is evidence that her general attitude was poor, she adversely affected the morale of other employees, and that she refused to cooperate with several of the teachers. There had been serious discussions before the time of the “Dixie” incident about dismissing her because of her incompetency. The findings of the trial court on this issue, which are supported by credible evidence, are not clearly erroneous and indicate that the actual rationale behind Mrs. Caldwell’s discharge was her failure to perform adequately at her job. Mrs. Caldwell argues that certain unsworn statements filed after the trial which reflected upon her qualifications and performance on the job should not have been considered by the District Court in making its decision since she was not given an opportunity to refute the accusations contained in them. This evidence, if considered by the District Judge, was incompetent, but we have already concluded there was substantial competent evidence properly before him to support his decision. This Court will not “reverse a trial court in a nonjury case for having admitted incompetent evidence, whether objected to or not, unless all of the competent evidence is insufficient to support the judgment appealed from or unless it affirmatively appears from the record that the incompetent evidence complained of was relied upon by the trial court and induced the court to make an essential finding which would not otherwise have been made.” Thompson v. Carley, 140 F.2d 656, 660 *220(8th Cir. 1944); Builders Steel Company v. Commissioner of Internal Revenue, 179 F.2d 377, 379 (8th Cir. 1950); Herlihy Mid-Continent Company v. Northern Indiana Public Service Company, 245 F.2d 440, 444 (7th Cir. 1957), cert. denied, 355 U.S. 894, 78 S.Ct. 269, 2 L.Ed.2d 192; Processteel Inc. v. Mosley Machinery Company, Inc., 421 F.2d 1074 (6th Cir. 1970).
The final issue to be considered is whether these appellants lacked standing to challenge the constitutionality of the Christian religious services conducted during regular school hours at the high school. Appellants’ complaint alleges that in this cause of action they represent the same class of individuals (all the Negroes in the State of Tennessee) as in their first two causes of action. They also allege that defendants stand in the identical representative capacity as in the first two causes of action. Particularly with respect to this portion of litigation, appellants’ contention that this is a class action is erroneous. There is no conceivable rationale why, in pressing this specific claim, appellants should only represent the Negroes in the State of Tennessee. Nor is there any basis in reasoned thought why the named defendants should represent all individuals similarly situated when there are no allegations that common facts or law link the named defendants with their so-called class. At best, appellants stand alone in this part of the litigation and challenge the actions of only certain named officials of the Lebanon School system as defendants.
On the issue of standing, the District Court ruled that since appellants did “not allege any personal injury, or the infringement of any personal right” they lacked the necessary standing to challenge the high school’s conducting of religious services. Emphasis was also placed on the fact that attendanee at the services was voluntary. We conclude the District Court erred in its ruling on the question of standing. It is alleged in the complaint that Charles is a student at the high school and Mrs. Caldwell is his mother. In challenging the constitutionality of these types of religious services, there is sufficient interest to sue if the parties are either students enrolled in the institution where the services are carried on or are parents of the students.4 Sub silentio, School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). The fact that attendance at the services is voluntary does not affect appellants' standing to sue. Once it was argued that the voluntariness of attendance at the services would affect the constitutionality of the practice, but this has since been rejected by the Supreme Court. See Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962).
While appellants meet one aspect of justiciability, that is, standing to sue, it is concluded for the same reasons discussed with regard to Charles Caldwell’s cause of action, that this Establishment Clause controversy between the named parties has been mooted as a result of appellants leaving the school system.
Affirmed in part, dismissed in part.
APPENDIX
PARTIES
The plaintiffs bring this action on their own behalf and on behalf of all others similarly situated pursuant to Rule 23 of the Federal Rules of Civil Procedure. The prerequisites of subsections (a), (b) (1) and (b) (2) of that rule are satisfied. There are common questions of law and fact affecting the several rights of Negro children to participate in racially integrated public *221school activities and programs and to have members of their race serve in positions of public employment therein without racial discrimination. Additionally involved are the rights of Negro citizens to be not required to participate in racially discriminatory programs and ceremonies as a condition of participating in public school activities and programs and employment. The members of plaintiffs’ class (the Negro citizens of Wilson County and Tennessee) and defendants’ class (all public school band instructors, superintendents of schools, public high school principals, and boards of education and their members in the State of Tennessee) are so numerous as to make it impracticable to bring them all before this Court. The claims of the plaintiffs are typical of the claims of the class and the relief sought against all members of their class. A common relief is sought. The interests of the class are adequately represented by plaintiffs and defendants. The prosecution of separate actions by individual members of the class would create a risk of: (a) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the parties opposing the class, or (b) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests. Furthermore, the parties opposing the class have acted and refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole. The questions of law and fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Plaintiffs are Negro citizens of Wilson County, Tennessee, Mae Caldwell being over the age of 21 years. Plaintiff Charles Caldwell is 14 years of age and a freshman student at Lebanon High School. Until January 3, 1969, he was a member of four of the school’s bands. Plaintiff Mae Caldwell was employed as a teacher’s aide at Lebanon High School until January 31,1969.
Numerous other Negroes are members of the school bands in racially integrated schools in the State of Tennessee and other Negroes are employed as teachers or teacher’s aides therein.
Defendants are over the age of 21 years, reside in Wilson County, Tennessee and are members of the white race. Defendant Donald Craighead is the band instructor at Lebanon High School, and is sued in his official capacity, and as representative of that class consisting of all public school band instructors in Tennessee. Defendant Erwin Reed is Superintendent of Schools for Wilson County, Tennessee, and is sued in his official capacity, and as representative of that class consisting of all superintendents of schools in Tennessee. Defendant Barry Sutton is principal of Lebanon High School, and is sued in his official capacity, and as representative of that class consisting of all public high school principals in Tennessee. Defendants Kenneth Hackney, Dave Smith, Denver Bates, Pat Bryant, Claud Jennings, T. M. Dobson, and Carl Johnson are the members of defendant Board of Education of Wilson County, Tennessee, duly elected by the voters of Wilson County, Tennessee; they are sued in their official capacity as board members and they and defendant Board of Education are sued as representatives of that class consisting of all boards of education and their members in the State of Tennessee.
. Rules 23(b) (1), (2) and (3) are phrased in the disjunctive. They roughly correspond to what was the true, hybrid and spurious class action under old Rule 23. See 3B Moore Federal Practice § 23.01 [11.1-11.4]. Under the old Rule, civil rights actions, especially racial desegregation suits, were often brought as either true, e. g. Whitmyer v. Lincoln Parish School, 75 F.Supp. 686 (D.C. 1948) or spurious class actions, e. g. Lopez v. Seccombe, 71 F.Supp. 769 (D.C. 1944). The Advisory Committee Notes suggest that under the new Rule, 23(b) (2) is the vehicle to be employed in civil rights cases. While there is nothing inherently wrong about appellants’ alleging class representation under all three provisions of Rule 23(b), it is highly unlikely that such inclusive representation would, in fact, exist.
. We set out those portions of the complaint which purport to establish the appellants and appellees represent their respectively named classes in appendix to this opinion.
. That portion of the complaint setting out Charles Caldwell’s cause of -action alleges denial of rights protected by the First, Ninth, Thirteenth and Fourteenth Amendments of the Constitution.
. Appellants argue on this appeal that Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) supports their position on standing. However, there are no allegations in their complaint that they are taxpayers and thus they must and do rely on their status as student and parent to give them standing.