Adler Ex Rel. Adler v. Duval County School Board

United States Court of Appeals,

Eleventh Circuit.

No. 94-2638.

Karen ADLER, individually, and as Next Friend of the Minor,
Leslie Adler, and all others similarly situated, Laura Jaffa,
individually and all others similarly situated, Robin Zion,
individually and all others similarly situated, Robin Rand,
individually and as Next Friend of the minor, Doug Rand, and all
others, similarly situated, Plaintiffs-Appellants,

v.

DUVAL COUNTY SCHOOL BOARD, Larry Zenke, in his official capacity
as Superintendent of the Duval County Public School District, Don
Buckley, in his official capacity as member of the Duval County
School Board, Stan Jordan, in his official capacity as member of
the Duval County School Board, Nancy Corwin, in her official
capacity as member of the Duval County School Board, et al.,
Defendants-Appellees,

Student Coalition for Free Speech, American Jewish Congress,
Amici,

Sharon Green, as parent and next friend of Jennifer Green, minor
child, and Joshua Green, minor child, Linda Muhlbauer, as parent
and next friend of Mandy Muhlbauer, minor child, and Mark
Muhlbauer, minor child, Linda Gaston, parent and next friend of
Matthew Gaston, minor child, Rhonda Sellers, parent and next friend
of Steven Sellers, minor child, et al., Intervenors-Defendants.

May 6, 1997.

Appeal from the United States District Court for the Middle
District of Florida. (No. 93-833-CIV-J-10), Wm. Terrell Hodges,
Judge.

Before TJOFLAT and COX, Circuit Judges, and VINING*, Senior
District Judge.

TJOFLAT, Circuit Judge:

Appellants are four former high school students1 in the Duval

*
Honorable Robert L. Vining, Jr., Senior U.S. District Judge
for the Northern District of Georgia, sitting by designation.
1
Two appellants, Leslie Adler and Doug Rand, were minors
when the complaint was filed and brought their claims through
their mothers, Karen Adler and Robin Rand. The complaint makes it
clear that Karen Adler and Robin Rand are parties in name only
County, Florida, school system who brought this action under 42

U.S.C. § 1983 (1994), alleging that a Duval County school policy

permitting student-initiated prayer at high school graduation

ceremonies (the "policy") violated their rights under the First and

Fourteenth Amendments.2 They named as defendants the Duval County

School Board, the Board's members in their official capacity, the

Duval County School District, and Dalton Epting, the principal of

Mandarin Senior High School ("Mandarin"), in his official capacity.

These defendants are all appellees in the present appeal. The

remaining appellees are a group of parents who intervened as

defendants to assert their children's free exercise rights to have

prayers at graduation.

I.

Appellants Adler, Laura Jaffa, and Robin Zion filed a

two-count complaint on June 2, 1993. Count one alleged that the

policy constitutes an establishment of religion. Count two alleged

that the policy infringes on the appellant's free exercise of

religion. They asked for equitable relief in the form of a

judgment declaring the policy unconstitutional and enjoining the

School Board from permitting prayers at high school graduation

ceremonies. They also sought money damages.

On June 7, 1993, appellants Adler, Jaffa, and Zion graduated

and it is the students whose interests are at stake. We
therefore refer to the four students as the "appellants" and to
Leslie Adler and Doug Rand as "Adler" and "Rand," respectively.
2
The factual and procedural background of this case is set
out more fully in the published memorandum opinion and order of
the district court. See Adler v. Duval County Sch. Bd., 851
F.Supp. 446 (M.D.Fla.1994).
from Mandarin, one of the schools in the Duval County system. On

June 10, 1993, they amended their complaint to include, inter alia,

a request that the court certify their action as a class action.

They amended their complaint a second time on November 1, 1993, to

add appellant Rand, a student at another school in the Duval County

system, as a plaintiff.3

The plaintiffs, defendants, and defendant-intervenors filed

cross-motions for summary judgment on March 3, 1994. On May 4,

1994, the district court denied the appellants' motion and granted

the appellees' motions. In its dispositive memorandum opinion and

order, the court found the policy constitutional and entered final

judgment for the appellees. Adler, 851 F.Supp. at 456. Appellants

filed their notice of appeal on May 9, 1994.

Appellant Rand subsequently graduated in June 1994. Because

all four appellants have graduated, we find that to the extent they

seek declaratory and injunctive relief, their case is moot. The

only justiciable controversy in this case is the appellants' claim

for money damages. We affirm the district court's grant of summary

judgment for the appellees on this claim, but we do so without

reviewing the merits of the district court's constitutional

analysis.

II.

We begin by noting that appellants' claims for declaratory

and injunctive relief are moot. All appellants have graduated, and

none are threatened with harm from possible prayers in future Duval

3
This second amended complaint is the complaint before us;
we refer to it as "the complaint."
County graduation ceremonies. In short, the appellants have no

legally cognizable need for relief declaring the policy

unconstitutional and preventing the School Board from allowing

prayers at future graduations.

Article III of the Constitution limits the jurisdiction of the

federal courts to the consideration of certain "Cases" and

"Controversies." U.S. Const. art. III, § 2. The doctrine of

mootness is derived from this limitation because an action that is

moot cannot be characterized as an active case or controversy. See

Church of Scientology Flag Serv. Org. v. City of Clearwater, 777

F.2d 598, 604 (11th Cir.1985), cert. denied, 476 U.S. 1116, 106

S.Ct. 1973, 90 L.Ed.2d 656 (1986). "[A] case is moot when the

issues presented are no longer "live' or the parties lack a legally

cognizable interest in the outcome." Powell v. McCormack, 395 U.S.

486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). Any decision

on the merits of a moot case would be an impermissible advisory

opinion. See Church of Scientology Flag Serv. Org., 777 F.2d at

604 (citing Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201-02,

24 L.Ed.2d 214 (1969) (per curiam)).

To apply the doctrine of mootness to this case, we must

distinguish the appellants' claims for equitable relief from their

claim for money damages. Although neither the appellants nor the

district court treated the appellants' claim for damages as

distinct from their claims for equitable relief, these claims are

distinct by nature. Equitable relief is a prospective remedy,

intended to prevent future injuries. In contrast, a claim for

money damages looks back in time and is intended to redress a past
injury.

Frequently, a plaintiff will seek both forms of relief in the

same cause of action when challenging a defendant's course of

conduct that began before the initiation of the lawsuit and is

likely to continue in the future. The plaintiff requests money

damages to redress injuries caused by the defendant's past conduct

and seeks equitable relief to prevent the defendant's future

conduct from causing future injury.

When the threat of future harm dissipates, the plaintiff's

claims for equitable relief become moot because the plaintiff no

longer needs protection from future injury. This is precisely what

happened in this case.

Appellants argue that, despite their graduation from high

school, their claims for declaratory and injunctive relief are not

moot because the original injury is "capable of repetition, yet

evading review." See Southern Pac. Terminal Co. v. Interstate

Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310

(1911). This exception to the mootness doctrine is narrow.

[I]n the absence of a class action, the "capable of
repetition, yet evading review" doctrine [is] limited to the
situation where two elements combine[ ]: (1) the challenged
action [is] in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party [will]
be subjected to the same action again.

Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46

L.Ed.2d 350 (1975) (per curiam). This case does not satisfy the

second element. Because the complaining students have graduated

from high school, there is no reasonable expectation that they will

be subjected to the same injury again. See DeFunis v. Odegaard,
416 U.S. 312, 319-20, 94 S.Ct. 1704, 1707, 40 L.Ed.2d 164 (1974)

(finding challenge to law school admission policy moot because

petitioner "will never again be required to run the gauntlet of the

Law School's admission process").

Appellants contend, however, that two of the named plaintiffs,

Karen Adler and Robin Rand, are parents of other children who will

graduate sometime in the future from high schools in Duval County

and may be subjected to the same injury. In the complaint,

however, the caption notwithstanding, neither parent is described

as a plaintiff and no theories have ever been advanced to support

an individual action by either parent, nor were any allegations

made in the complaint regarding the existence of other children.

The former students are the only plaintiffs before us, 4 and as to

them, any claim for equitable relief is clearly moot. See Sapp v.

Renfroe, 511 F.2d 172, 176 (5th Cir.1975) (holding constitutional

challenge to graduation requirement brought by student who then

graduated moot);5 Laurenzo v. Mississippi High Sch. Activities

Ass'n, 662 F.2d 1117, 1120 (5th Cir. Unit A Dec.1981) (holding

constitutional challenge to student-transfer rule brought by

student who then graduated moot despite argument that student's

4
The appellants originally sought to represent a class of
similarly situated students who would graduate in the future, but
they failed timely to move the district court for class
certification pursuant to local court rules. The district court
denied the appellants leave to file a motion for class
certification out of time. The appellants do not challenge this
ruling.
5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
parent had other children who might suffer same injury).6

Because any claim for equitable relief has been rendered moot

by the appellants' graduations, we must vacate the district court's

grant of summary judgment to the appellees on the appellants'

claims for declaratory and injunctive relief and remand the case to

the district court with instructions to dismiss those claims. See,

e.g., Lewis v. Continental Bank Corp., 494 U.S. 472, 482, 110 S.Ct.

1249, 1256, 108 L.Ed.2d 400 (1990). Having disposed of the

appellants' claims for equitable relief, we are left with their

claim for money damages, which we now address.

III.

Because the appellants' claim for money damages does not

depend on any threat of future harm, this claim remains a live

controversy. See Havens Realty Corp. v. Coleman, 455 U.S. 363,

371, 102 S.Ct. 1114, 1120, 71 L.Ed.2d 214 (1982) ("Given

respondents' continued active pursuit of monetary relief, this case

remains "definite and concrete, touching the legal relations of

parties having adverse legal interests.' ") (quoting Aetna Life

Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 464, 81

L.Ed. 617 (1937)).

We accordingly turn our focus to the basis for the appellants'

claim for damages. The complaint alleges that a "senior class

chaplain" delivered a prayer at the June 7, 1993, Mandarin

6
Although decisions from Unit A of the former Fifth Circuit
handed down after September 30, 1981, are not binding precedent,
we find the reasoning in Laurenzo persuasive. See Stein v.
Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982) (adopting as
binding precedent all decisions of Unit B of former Fifth Circuit
handed down after September 30, 1981, but recognizing persuasive
authority of non-binding Unit A decisions).
graduation ceremony at which appellants Adler, Jaffa, and Zion

graduated.7 The only past injury for which the appellants could

seek redress is being subjected to this prayer at their graduation

ceremony.8 To prove that the appellees caused this injury, the

appellants alleged in their complaint that the prayer was "a direct

consequence" of the school's policy. In their answer, the

7
The parties agree that a student delivered the following
message:

First and foremost, we give thanks to our parents for
providing the love and support that we have too many
times taken for granted. We thank our teachers for
challenging our minds and inspiring us to greater
achievement. And finally to our special friends who
are present today, we thank you for sharing our joy.

We, as a class, are entering a new chapter in our
lives. As we enter this new time, there will be many
decisions to be made, decisions that will shape our
future.

We ask for divine guidance, strength, and a burning
desire to move ahead and succeed. In God's name we
pray. Amen.

We assume without deciding that this message
constitutes a religious prayer for First Amendment purposes.
See DeSpain v. DeKalb County Community Sch. Dist. 428, 255
F.Supp. 655, 655-56 (N.D.Ill.1966) (finding verse "We thank
you for the flowers so sweet; /We thank you for the food we
eat; /We thank you for the birds that sing; /We thank you
for everything" did not constitute prayer for First
Amendment purposes), rev'd, 384 F.2d 836 (7th Cir.1967)
(finding same verse did constitute prayer), cert. denied,
390 U.S. 906, 88 S.Ct. 815, 19 L.Ed.2d 873 (1968); see also
Engel v. Vitale, 370 U.S. 421, 424, 82 S.Ct. 1261, 1264, 8
L.Ed.2d 601 (1962) (describing prayer as "solemn avowal of
divine faith and supplication for the blessings of the
Almighty").
8
Appellant Rand did not graduate at this ceremony. Because
he graduated after the district court entered final judgment, he
has no claim for money damages in this case. Summary judgment in
favor of the appellees on Rand's claim was thus proper and is
affirmed. In the rest of this part of the opinion, we use the
term "appellants" to refer only to appellants Adler, Jaffa, and
Zion.
appellees admitted that a student said the prayer, but denied that

the prayer was a consequence of the policy.

The district court based its decision to grant the appellees'

motion for summary judgment on its conclusion that the policy was

not unconstitutional. Because we find that the district court's

order must be affirmed regardless of the constitutionality of the

policy, we abstain from ruling on this controversial constitutional

question. See Lyng v. Northwest Indian Cemetery Protective Ass'n,

485 U.S. 439, 445, 108 S.Ct. 1319, 1323, 99 L.Ed.2d 534 (1988) ("A

fundamental and longstanding principle of judicial restraint

requires that courts avoid reaching constitutional questions in

advance of the necessity of deciding them.").

The only issue the appellants raise on appeal is whether the

district court erred in holding the policy constitutional. While

the constitutionality of the policy may have been central to the

now moot issue of whether equitable relief is warranted to prevent

the policy from being implemented at future graduations, it does

not dispose of the issue of whether the appellants should be

awarded money damages for being subjected to the prayer at their

graduation. In other words, any claim for damages does not depend

on the constitutionality of the policy in the abstract or as

applied in other Duval County schools. Even if the policy is

unconstitutional, the defendants might not be liable if, for

example, they did not implement the policy at the ceremony in

question or if the prayer would have been delivered without the

policy. On the other hand, if the district court was correct in

finding the policy constitutional, defendant Epting, Mandarin's
principal, might nonetheless be liable if he implemented the policy

in an unconstitutional manner.9
The constitutionality of the policy, therefore, has little

independent relevance to the appellants' damages claim. Whether

they are entitled to damages depends entirely on the circumstances

under which the prayer was delivered at their graduation ceremony.

In order to prevail, the appellants must have some theory

connecting the individual defendants to the prayer.

For these reasons, even if we were to find fault with the

district court's constitutional analysis of the policy, this

conclusion by itself would not answer the question of whether the

court erred in granting the appellees summary judgment on the

damages claim. The appellants offer no other grounds in their

briefs for finding trial court error.

After considering the appellants' briefs and oral argument, we

are convinced that they either fail to understand the basis for

9
For example, the district court based its conclusion that
the policy did not violate the Constitution under the test
enunciated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29
L.Ed.2d 745 (1971), in part on its finding that the policy did
not have the primary effect of advancing religion because it did
"not mandate, require, or direct that religious expression or
prayer occur at any graduation ceremony." Adler, 851 F.Supp. at
453. Similarly, it held that the policy was not unconstitutional
under Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d
467 (1992), because the policy did "not solicit or mandate
invocations or benedictions." Adler, 851 F.Supp. at 456.

Assuming that both these conclusions are correct,
Epting still might be liable for a constitutional tort under
either of these tests if he "mandate[d], require[d], or
direct[ed] that" the prayer be delivered at the Mandarin
gradation.
their damages claim or do not seriously seek damages.10 They have

offered us no connection between the prayer and their damages

claim; their briefs offer no indication as to any of the

circumstances surrounding the Mandarin graduation prayer. They

failed to argue that the prayer was a "direct consequence" of the

policy, or any other theory connecting the defendants' actions to

the Mandarin prayer. Their briefs do not even include the

allegation made in their complaint that a prayer was delivered at

Mandarin.

If they had desired to preserve their damages claim on appeal,

they should have included all this information in their initial

brief pursuant to the rules of appellate procedure. See Fed.

R.App. P. 28(a)(3), (4), (6), (requiring appellant to include in

initial brief "[a] statement of the issues presented for review";

a statement "indicat[ing] briefly the nature of the case" followed

by "a statement of the facts relevant to the issues presented for

review"; an argument "contain[ing] the contentions of the

appellant on the issues presented"). Most telling of all, is their

request for relief. Fed. R.App. P. 28(a)(7) requires appellants to

include in their initial brief a "short conclusion stating the

precise relief sought." In their brief, the appellants only ask us

to reverse the district court and remand the case "with directions

for entry of summary judgment and declaratory relief." They do not

ask us to direct the district court on remand to award money

10
In support of the latter conclusion, we note that
appellants agreed with the district court's assertion at a
pretrial hearing that their "prayer for injunctive relief ... is
99 percent of this litigation."
damages or to hold any kind of further proceedings on their damages

claim. See Frank v. United States, 78 F.3d 815, 832-34 (2d

Cir.1996) (holding issue waived because cross-appellant failed to

request appropriate relief, even though cross-appellant had stated

the issue and attempted to incorporate argument before district

court), petition for cert. filed, 64 U.S.L.W. 2600 (U.S. June 13,

1996)(No. 95-2006) .

In fact, the only references to their claim for damages were

two cursory statements, one in their initial brief and one at oral

argument. Their brief indicated that they initiated the lawsuit

"seeking declaratory and injunctive relief, as well as damages,"

but never again mentioned their damages claim or its underlying

legal theory. After contending at oral argument that their case

fit within the "capable of repetition, yet evading review"

exception to the mootness doctrine discussed above, appellants

suggested in passing that their case was not moot because the

complaint contained a prayer for money damages.11

We cannot agree with Judge Vining's conclusion that this

cursory treatment is sufficient to preserve their damages claim on

appeal. Without the benefit of developed argument from both sides

regarding the propriety of the district court's grant of summary

judgment on the damages claim, we cannot effectively review that

decision. For us to rule on this issue would deny the appellees

the opportunity to argue that they were not legally responsible for

11
They first argued that their case was not moot in their
reply brief. In that brief, however, the only argument they made
was that their case was "capable of repetition, yet evading
review." They made no mention of their claim for damages.
the prayer delivered at the appellants' graduation. As we noted in

Federal Savings & Loan Ins. Corp. v. Haralson, 813 F.2d 370 (11th

Cir.1987):

The waiver rule requires that the appellant state and address
argument to the issues the appellant desires to have reviewed
by this Court in the appellant's initial brief because "[i]n
preparing briefs and arguments, an appellee is entitled to
rely on the content of an appellant's brief for the scope of
the issues appealed."

Id. at 373-74 n. 3 (quoting Pignons S.A. de Mecanique v. Polaroid

Corp., 701 F.2d 1, 3 (1st Cir.1983)).
For all these reasons, we hold that they have waived their

damages claim on appeal.12 See, e.g., Braun v. Soldier of Fortune

12
Judge Vining suggests that the proper disposition of this
case is to reach the merits of the district court's ruling and,
if we were to find it erroneous, remand the case for further
proceedings on the damages claim. Such a disposition is
logically appealing, but does not take into account the
significance of the appellants' failure on appeal to (1)
articulate any theory connecting the actions of the appellees to
a cognizable injury suffered by the appellants, (2) discuss any
facts relevant to the Mandarin graduation ceremony, other than
the existence of the policy, or (3) request that we remand the
case with directions that the district court either award money
damages or, at the very least, conduct further proceedings to
determine whether damages are warranted. These glaring omissions
clearly demonstrate that the appellants have not advanced their
damages claim on appeal.

Perhaps the appellants did state a valid damages claim
in their complaint, and the evidence available to them may
very well support that claim. Had the appellants perceived
that any claim for injunctive relief based solely on the
policy was moot, we have little doubt that they would have
fully briefed their damages claim on appeal. In the absence
of plain error, however, it is not our place as an appellate
court to second guess the litigants before us and grant them
relief they did not request, pursuant to legal theories they
did not outline, based on facts they did not relate. See
Fed. R.App. P. 28(a); Head Start Family Educ. Program, Inc.
v. Cooperative Educ. Serv. Agency 11, 46 F.3d 629, 635 (7th
Cir.1995) (noting that an appellate "court has no duty to
research and construct legal arguments available to a
party"); Golden Pacific Bancorp v. Clarke, 837 F.2d 509,
513 (D.C.Cir.) ("[Appellate courts] do not sit as
Magazine, 968 F.2d 1110, 1121 n. 13 (11th Cir.1992) (refusing to

review issue not raised and argued in appellant's initial brief),

cert. denied, 506 U.S. 1071, 113 S.Ct. 1028, 122 L.Ed.2d 173

(1993). We therefore affirm the district court's order to the

extent it denied the appellants' motion for summary judgment and

granted the appellees' motions for summary judgment on the

appellants' damages claim.

IV.

For the foregoing reasons, we VACATE the district court's

order granting the appellees summary judgment on the appellants'

claims for declaratory and injunctive relief and REMAND the case

with instructions that the district court dismiss those claims. We

AFFIRM the district court's denial of the appellants' motion for

summary judgment and its grant of summary judgment for the

appellees on the appellants' damages claim.

It is SO ORDERED.

VINING, Senior District Judge, concurring in part and
dissenting in part:

While I concur in the majority's conclusion that the

appellants' requests for injunctive and declaratory relief are

moot, I cannot agree with its finding that the appellants have

self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and
argued by the parties."), cert. denied, 488 U.S. 890, 109
S.Ct. 223, 102 L.Ed.2d 213 (1988).

We recognize that we have discretion to overlook
technical noncompliance with Rule 28(a) and can even decide
issues sua sponte. These courses of action are only
appropriate in rare circumstances to avoid manifest
injustice. See Frank, 78 F.3d at 833. We find, however,
that this case does not present sufficiently compelling
reasons for us to exercise that discretion.
waived their claim for money damages. Accordingly, I respectfully

dissent from Part III of the majority opinion.

As the majority observes, the appellants specifically alleged

in their complaint that a member of the senior class delivered a

prayer at the June 7, 1993, Mandarin Senior High School graduation

exercises at which appellants Adler, Jaffa, and Zion graduated.

Consistent with this allegation and their request for money

damages, the appellants also alleged that the prayer was a direct

consequence of the Duval County School District policy at issue in

this case.1

On May 4, 1994, the district court granted the appellees'

motion for summary judgment, concluding that the Duval County

School District policy was not unconstitutional. The district

court neither discussed nor analyzed the appellants' claim for

money damages in its memorandum opinion and order.2 Instead, after

dismissing all of the appellants' constitutional challenges to the

instant policy, the district court entered final judgment for the

1
The appellants' complaint is replete with additional
specific and particularized allegations that outline other
instances in which senior class representatives delivered
religious messages at other Duval County high school commencement
ceremonies. Moreover, the appellants specifically allege that
these prayers were delivered as a result of the subject school
district policy.
2
In fact, the district court referenced the appellants'
claim for money damages only once in its twenty-two page
memorandum opinion and order. In its introduction, the court,
after observing that the appellants sought injunctive relief,
noted that they "also sought declaratory relief and damages."
R4-123-2. This was the district court's sole reference to the
appellants' money damages claim. The district court thereafter
extensively analyzed the constitutional issues presented in this
case without ever addressing, even in the most perfunctory
fashion, the appellants' money damages claim.
appellees. It never, explicitly or implicitly, addressed, in any

substantive fashion, the appellants' damages claim.3
Despite the uncontroverted fact that the district court never

addressed or analyzed the appellants' claim for money damages in

its memorandum opinion and order, the majority concludes that the

appellants' failure to "fully brief" their money damages claim on

appeal constitutes a waiver of that claim. 4 Because I find that

the appellants properly and adequately briefed and argued on appeal

the only issue actually addressed and decided by the district

court, i.e., the constitutionality of the instant policy, I

disagree with the majority's decision.5

As the district court implicitly recognized, it was absolutely

unnecessary for it to engage in any analysis of the appellants'

claim for money damages after it determined that the instant policy

was not unconstitutional. The district court properly expressed no

opinion regarding the propriety of the appellants' money damages

3
I am not implying that the district court erred by failing
to analyze the appellants' claim for money damages. Once the
district court ruled that the subject policy was not
unconstitutional, it was unnecessary for the court to consider
the appellants' claim for monetary damages. Indeed, any
discussion by the district court of money damages at that point
would have been dicta.
4
Although the appellants may have agreed with the district
court's assertion at the pretrial hearing that their prayer for
injunctive relief was ninety-nine percent of the relief sought in
this matter, such a concurrence provides no persuasive support
for the proposition that the appellants waived their claim for
money damages on appeal or that they did not seriously seek
monetary damages. To the extent that the majority states
otherwise, I do not concur.
5
Although the appellants did not discuss in great detail
during oral argument the evidence supporting their money damages
claim, they did, as the majority notes, reference and acknowledge
the existence of such a claim.
claim subsequent to holding that the policy at issue survived

constitutional scrutiny because, under the facts of this case, the

appellants were not entitled to money damages, or injunctive or

declaratory relief for that matter, absent a finding that the

subject policy was unconstitutional.6 Consistent with the district
court's ruling, the appellants, therefore, properly focused upon

the alleged errors committed by the district court in its

constitutional analysis. Under these circumstances, I am not aware

of any legal theories, principles of equity, or appellate rules,

including those cited by the majority, that support the majority's

waiver position.

Since I conclude that the appellants sufficiently raised their

6
While the constitutionality of the instant policy is not
dispositive of the appellants' money damages claim, the
appellants' claim for money damages, like their requests for
injunctive and declaratory relief, clearly does depend upon the
constitutionality of the subject policy. I disagree with the
majority's assertion to the contrary. The appellants' only claim
for money damages relates to the prayer delivered at the Mandarin
graduation. As I have previously explained, the appellants
specifically alleged in their complaint that this prayer was
given as a direct result of the policy at issue in this case.

The appellants did not allege in their complaint, or
assert at any time in the course of this litigation, that
any individual defendant acted unconstitutionally, except
when acting pursuant to the purportedly unconstitutional
Duval County School District policy. For example, the
appellants did not allege in their complaint that the
Mandarin principal, Dalton Epting, acted independently,
rather than pursuant to the policy at issue, when he
permitted the senior class representative to deliver the
prayer at the Mandarin graduation ceremony. The majority's
suggestion that Epting might be liable if he independently
mandated, required, or directed that a prayer be given
appears only in the majority opinion. The appellants have
never advanced this theory of liability, and there are no
factual allegations in their complaint to support such a
theory. Thus, consistent with the appellants' allegations
in their complaint, the claim for money damages does depend
directly upon the constitutionality of the subject policy.
claim for money damages in their complaint, properly alleged that

such damages were the direct consequence of an unconstitutional

policy, and properly and adequately challenged in their appellate

briefs and during oral argument the only issue actually addressed

and decided by the district court, I cannot agree that the

appellants have waived their claim for money damages on appeal.

Consequently, I would reach the merits of the constitutional

arguments raised in this case and would, if necessary, remand the

matter to the district court for a hearing on all relevant factual
and legal issues relating to the appellants' claim for money

damages.7

7
I am cognizant of the fact that the constitutionality of
the instant policy is not dispositive of the issue of money
damages. Even if this court were to find that the subject policy
is unconstitutional, the appellants would not automatically be
entitled to money damages. Rather, the appellants would still be
required to prove, as they alleged in their complaint, that the
prayer delivered at the Mandarin graduation was given as a result
of the subject policy.

If this court were to conclude that the instant policy
is unconstitutional, the appellees, contrary to the
majority's assertion otherwise, would have an ample
opportunity to "argue that they were not legally responsible
for the prayer delivered at the appellants' graduation." If
this court concluded that the subject policy did not survive
constitutional scrutiny, the court would then remand the
damages issue to the district court. On remand, both the
appellants and appellees would have the opportunity to argue
the merits of the appellants' damages claim. After
reviewing all of the relevant evidence and hearing arguments
from the appellants and appellees, the district court would
thereafter determine whether the appellants were entitled to
the money damages that they have requested.