         Case: 15-14183   Date Filed: 12/06/2016   Page: 1 of 19


                                                                   [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 15-14183
                     ________________________

              D.C. Docket No. 5:13-cv-00623-WTH-PRL



CARVER MIDDLE SCHOOL GAY-STRAIGHT ALLIANCE,
an unincorporated association,
H.F.,
a minor by and through parent Janine Faughnan,

                                            Plaintiffs - Appellants,

                              versus

SCHOOL BOARD OF LAKE COUNTY, FLORIDA,

                                            Defendant - Appellee.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                    ________________________

                          (December 6, 2016)
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Before MARCUS and WILLIAM PRYOR, Circuit Judges, and DAVIS, * District
Judge.

WILLIAM PRYOR, Circuit Judge:

       This appeal requires us to decide whether a complaint that a school board

violated the Equal Access Act when it denied the application of the Carver Gay-

Straight Alliance to form a student club is ripe and not moot and whether the Act

applies to a public middle school in Florida. After a teacher at Carver Middle

School submitted an application for the approval of the Carver Gay-Straight

Alliance, the superintendent denied the application on the ground that the

application failed to identify an allowed purpose for the club. Instead of submitting

a new application, the Alliance and a student, H.F., filed a complaint that the Board

had violated the First and Fourteenth Amendments to the Constitution and the

Equal Access Act. Under the Act, if a public school “provides secondary education

as determined by State law,” the school must give extracurricular clubs equal

access to school resources. 20 U.S.C. §§ 4071–72. Following a bench trial, the

district court entered a judgment against the constitutional claims, dismissed the

claim under the Act as both not ripe and moot, and ruled, in the alternative, that the

Act does not apply to Carver Middle School. The Alliance and H.F. appeal only

the dismissal of their complaint that the Board violated the Act. Because we

*
 Honorable Brian J. Davis, United States District Judge for the Middle District of Florida, sitting
by designation.


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conclude that the complaint of the Alliance and H.F. is ripe and not moot and that

the Act applies to Carver Middle School, we vacate and remand for further

proceedings.

                                 I. BACKGROUND

      The School Board of Lake County, Florida, administers Carver Middle

School, a public school that educates students in grades six through eight. Middle

schools in Florida must provide “at least one high school level mathematics course

for which students may earn high school credit.” Fla. Stat. § 1003.4156(1)(b).

Carver provides Algebra I to meet this obligation. The Carver Gay-Straight

Alliance is an unincorporated association.

      Beginning in the 2011–12 school year, students at Carver Middle School

submitted applications to approve the Alliance as a student club. The principal of

the school denied the first application. Students submitted another application the

following school year. The new principal, Mollie Cunningham, referred the

application to the Board. Because the Board determined that principals across the

district inconsistently applied district policy for club formation, it held several

meetings to discuss amending the policy. A student not associated with this appeal

sued the Board to compel it to approve the club. The parties agreed to a consent

order the next day that required the Board to approve the Alliance as a club for the




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one month remaining in the school year. The Alliance held three meetings during

that period.

       In August 2013, the Board adopted a new policy for student clubs. The

policy outlined different sets of rules for elementary, middle, and high schools.

Policy 4.502 governs middle schools and requires clubs to obtain the

superintendent’s approval that the club meets an approved purpose:

       (2) Middle School clubs and organizations are an extension of the
       school curriculum. Middle School clubs must be sponsored by the
       school and are limited to organizations that strengthen and promote
       critical thinking, business skills, athletic skills, and performing/visual
       arts. Schools may also establish organizations relating to academic
       honor societies and student government and clubs that are directly
       related to the curriculum.
       (3) All student clubs and organizations must be approved by the
       Superintendent before they can operate at a school.
       (4) All prospective clubs must submit a District approved application.
       The application shall include a club charter which shall set forth the
       purposes, qualifications for members, and the rules of conduct and
       shall be maintained on file for reference by all students and school
       employees.
Doc. 75 at 7–8. Under the policy, clubs must apply for approval each school year.

The Board policy for high school clubs is more permissive and includes

designations for curricular, non-curricular, and interscholastic extra-curricular

activities.

       During the 2013–14 school year, H.F. attended Carver and submitted an

application through Heather Jablonski, a teacher at the school and the proposed

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club sponsor. Jablonski signed the application; she did not help prepare it. The

application described the following purposes and goals of the club to support

LGBT students:

      (1) to create a safe, supportive environment at school for students to discuss
      experiences, challenges, and successes of LGBT students and their allies

      (2) to create and execute strategies to confront and work to end bullying,
      discrimination, and harassment against all students, including LGBT
      students

      (3) to promote critical thinking by discussing how to address bullying and
      other issues confronting students at Carver Middle School.

Doc. 4-11 at 2.

      After the superintendent, Susan Moxley, delegated authority to Aurelia Cole,

the district chief of administration, to approve or deny applications, Cole

determined that the application for the Alliance did not comply with the Board

policy because the club was “not an extension of the school curriculum.” She

returned the application to Cunningham with an email that explained the club

could “resubmit an application with a charter that would qualify under current

Board Policy.” Cole did not then understand that she could approve clubs that

“strengthen and promote critical thinking, business skills, athletic skills, and

performing visual arts.” But the superintendent later testified—and Jablonski and

the district court agreed—that the application was deficient under Board policy




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because it made no attempt to explain how the club would promote critical

thinking.

      Cole contacted Cunningham and told her that if the Alliance resubmitted and

included more information on critical thinking, the club might be approved. The

superintendent testified that she would have been “inclined to approve the

application” had it been adequate. The Alliance did not submit another application

for the 2013-14 or 2014-15 academic years.

      The Alliance and H.F. sued the Board for violating the Equal Access Act

and the First and Fourteenth Amendments. They sought nominal damages, a

declaratory judgment, and an order enjoining the Board from denying the club

access to the school forum. After a bench trial, the district court entered judgment

against the constitutional claims.

      The district court ruled that the claim under the Equal Access Act was both

not ripe and was moot. The district court ruled that the claim was not ripe because

it “depended upon facts that were not sufficiently developed.” The district court

reasoned that the Alliance could have resubmitted an application, and the costs to

the Alliance of the delay “appear[ed] to be minimal.” The district court ruled that

the claim was moot because the Alliance applied for the 2013–14 school year,

which had ended, and the Alliance did not submit a new application for the 2014–




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15 school year. The district court concluded that “[t]he net result is that there is

nothing to enjoin the School Board to do or not to do.”

      As an alternative ground for denying relief, the district court ruled that the

Equal Access Act does not apply to Carver Middle School. The Act applies to

secondary schools that receive federal funds and have limited open forums. 20

U.S.C. § 4071(a). The Act defines “secondary school” as any “public school which

provides secondary education as determined by State law.” Id. § 4072(1). The

district court ruled that, in Florida, a secondary school means a high school.

      After oral argument, we ordered the parties to address whether the Alliance

continues to have organizational standing to pursue prospective relief. See Cadet v.

Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004). We directed the parties to file

supplemental letter briefs on this issue. The Alliance also filed a motion to

supplement the record with an affidavit establishing that its current membership

includes a student who attends Carver. The Board requested a remand on this issue

or an opportunity to rebut the affidavit.

                           II. STANDARD OF REVIEW

      We review whether an issue is moot or ripe de novo. See Cook v. Bennett,

792 F.3d 1294, 1298 (11th Cir. 2015); Temple B’Nai Zion, Inc. v. City of Sunny

Isles Beach, 727 F.3d 1349, 1356 (11th Cir. 2013). We review questions of




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statutory interpretation de novo. See Vila v. U.S. Att’y. Gen., 598 F.3d 1255, 1257

(11th Cir. 2010).

                                 III. DISCUSSION

      We divide our discussion in three parts. First, we explain that the complaint

that the Board violated the Act is ripe because the Board made a final decision

when it rejected the application of the Alliance to form a club. Second, we explain

that the complaint also is not moot because the district court can still fashion relief

for a violation of the Act. Third, we explain that the Act applies to Carver because

it provides courses for high school credit and, under Florida law, these courses

constitute “secondary education.”

                 A. The Complaint of the Alliance and H.F. Is Ripe.

      “The Constitution confers limited authority on the judicial branch. It endows

the federal courts with ‘[t]he judicial Power of the United States,’ and limits that

power to the resolution of ‘Cases’ and ‘Controversies.’” Nicklaw v. CitiMortgage,

Inc., 839 F.3d 998, 1001 (11th Cir. 2016) (quoting U.S. Const. Art. III, §§ 1–2).

Article III of the U.S. Constitution restricts the ability of courts to review cases and

controversies that are not ripe, “reserving limited judicial resources for individuals

who face immediate, tangible harm.” Bowen v. First Family Fin. Servs., Inc., 233

F.3d 1331, 1340 (11th Cir. 2000). “In deciding whether a claim is ripe for

adjudication or review, we look primarily at two considerations: 1) the fitness of


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the issues for judicial decision, and 2) the hardship to the parties of withholding

court consideration.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,

1224 (11th Cir. 2004). The doctrine “protects federal courts from engaging in

speculation or wasting their resources through the review of potential or abstract

disputes.” Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.

1997).

      The Board argues that the complaint of the Alliance and H.F. is not ripe

because they concede that their application was deficient under Board policy, yet

they failed to submit a new, adequate application. The Alliance and H.F. respond

that their complaint became ripe when the Board denied their application. We

agree with the Alliance and H.F.

      The complaint is ripe because the Board made a final and binding decision

rejecting the Alliance’s application. This Circuit has explained that “[in] essence,

[the ripeness] doctrine deals with when a party can seek pre-enforcement review.”

Elend v. Basham, 471 F.3d 1199, 1210–11 (11th Cir. 2006). For example, in

Digital Properties, an assistant zoning technician informed representatives of an

adult entertainment company that the zoning code prohibited adult bookstores and

suggested that the representatives meet with her supervisor. 121 F.3d at 588–89.

The business then sued and this Court held that the complaint was not ripe because

there was no “binding conclusive administrative decision.” Id. at 590. Here, in

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contrast, the Alliance submitted an application, and Cole rejected it. The Board did

not create a procedure by which a club could appeal that decision. The district

court reasoned that school administrators informed the Alliance multiple times that

it could resubmit the application “and expound on the critical thinking” elements

of the club. But that the Alliance had an opportunity to re-apply does not mean that

the decision was not a formal and final decision on the application.

      Because the Alliance argues that the school policy requiring a club to focus

on critical thinking violated the Equal Access Act, the decision by the Board to

reject the application based on that policy made the complaint fit for adjudication.

The Alliance argues that, under the Equal Access Act, the Board cannot “limit non-

curricular clubs to particular subject areas.” The Alliance argues that the Board

violated the Act when it applied its policy and rejected the Gay-Straight Alliance

because it did not promote critical thinking. The facts as to that claim were

developed. The district court faulted the Alliance for not resubmitting an

application “embellish[ing] the description of the ways and means that the club

would ‘strengthen and promote critical thinking.’” But even if we could assume

that the Board would have approved another hypothetical application—and we

doubt that we can make that assumption—that assumed fact would not mean that

the complaint of the Alliance and H.F. that the Board violated the Act when it

denied their earlier application is somehow unfit for adjudication.

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                          B. The Complaint Is Not Moot.
      Like the doctrine of ripeness, the doctrine of mootness “derives directly

from the case-or-controversy limitation.” Al Najjar v. Ashcroft, 273 F.3d 1330,

1335 (11th Cir. 2001). It also prevents us from issuing opinions that “would be

purely advisory.” Id. at 1339. “A case is moot when it no longer presents a live

controversy with respect to which the court can give meaningful relief.” Ethredge

v. Hail, 996 F.2d 1173, 1175 (11th Cir. 1993).

      To evaluate whether their complaint is moot, we must consider the forms of

relief that the Alliance and H.F. requested. The Alliance and H.F. sought nominal

damages, a declaratory judgment, and an order enjoining the Board from denying

the club access to the school forum. They argue that a court could grant nominal

damages and that their claims are capable of repetition, yet evade review. The

Board argues that a court cannot give any relief because H.F. no longer attends

Carver and the Alliance expressed no interest in obtaining recognition. Although

we agree that some forms of relief are foreclosed to H.F. and may be foreclosed to

the Alliance, the remainder of the complaint is not moot.

      H.F. cannot receive injunctive or declaratory relief. An injunction is

unavailable because H.F. no longer attends Carver and cannot submit a future

application. Meaningful declaratory relief is also unavailable. Although “[a] court

may grant declaratory relief even though it chooses not to issue an injunction,”


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Powell v. McCormack, 395 U.S. 486, 499 (1969), a court cannot grant declaratory

relief when there is no “immediate and definite governmental action or policy that

has adversely affected and continues to affect a present interest,” Super Tire Eng’g

Co. v. McCorkle, 416 U.S. 115, 125–26 (1974). H.F. has no present interest, other

than vindication, in a declaratory judgment.

      Nor does H.F.’s request for injunctive or declaratory relief fall under the

exception for mootness for cases that are “capable of repetition, yet evade[]

review.” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). The doctrine

“applies only in exceptional situations,” id., where “(1) the challenged action is in

its duration too short to be fully litigated prior to cessation or expiration, and (2)

there is a reasonable expectation that the same complaining party will be subject to

the same action again,” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007)

(emphasis added). H.F. fails to meet the second element. H.F. has completed the

equivalent of graduating from Carver, so the issue, “while capable of repetition,

certainly will not recur as to [H.F.].” Sapp v. Renfroe, 511 F.2d 172, 176 (5th Cir.

1975); see also DeFunis v. Odegaard, 416 U.S. 312, 319 (1974) (holding that the

complaint of a law school student regarding admissions was moot because the

student was about to graduate); Adler v. Duval Cty. Sch. Bd., 112 F.3d 1475, 1477–

78 (11th Cir. 1997) (holding that the complaint of several students that the




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graduation ceremony policies of a school violated the First Amendment was moot

because the students had graduated).

      H.F.’s and the Alliance’s demands for nominal damages are not moot. A

court could grant nominal damages, which “are the appropriate means of

‘vindicating’ rights whose deprivation has not caused actual, provable injury.”

Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11 (1986). In many

instances, courts may grant nominal damages even when injunctive or declaratory

relief is unavailable. Covenant Christian Ministries, Inc. v. City of Marietta, 654

F.3d 1231, 1244, 1246 (11th Cir. 2011). Although district courts are not required

to grant nominal damages where statutory rights are violated, Walker v. Anderson

Elec. Connectors, 944 F.2d 841, 845 (11th Cir. 1991), we have not addressed

whether nominal damages or any form of monetary relief can be awarded for a

violation of the Equal Access Act, nor do we here, see Hughes v. Lott, 350 F.3d

1157, 1162 (11th Cir. 2003) (remanding for the district court to determine whether

the Prison Reform Litigation Act precludes granting nominal damages). We have

suggested that nominal damages are available for violations of other statutes. Smith

v. Allen, 502 F.3d 1255, 1267 n.6 (11th Cir. 2007), abrogated on other grounds by

Sossamon v. Texas, 563 U.S. 277 (2011); Murphy v. City of Flagler Beach, 761

F.2d 622, 631 (11th Cir. 1985); see also Liberty Nat’l Ins. Holding Co. v. Charter

Co., 734 F.2d 545, 560 nn.31–32 (11th Cir. 1984) (acknowledging that courts may

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imply damages remedies so long as the relief is “limited to the harm done”). But

we leave it to the district court to decide, in the first instance, whether the Equal

Access Act affords a private right to relief, monetary or otherwise.

      On this record, we cannot determine whether the request of the Alliance for

injunctive or declaratory relief is moot because it is unclear whether the Alliance

has organizational standing to pursue prospective relief. For the members of an

organization, “[t]he requisite personal interest that must exist at the

commencement of the litigation . . . must continue throughout its existence,”

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189

(2000), but the charter members of the Alliance no longer attend Carver.

      Although we have “inherent equitable powers . . . to supplement the record

with information not reviewed by the district [court],” Cabalceta v. Standard Fruit

Co., 883 F.2d 1553, 1555 (11th Cir. 1989) (alteration in original), we decline to do

so in this appeal. The parties disagree about whether the current membership of the

Alliance includes a student who attends Carver. When an appeal presents a

contested issue of mootness, we have allowed the district court the opportunity to

address that issue first. United States v. Prevatt, 414 F.2d 239, 241 (5th Cir. 1969)

(remanding to the district court where it was unclear whether property was within

the jurisdiction of the court). Consistent with that practice, we deny the motion to




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supplement the record and remand to the district court to determine whether the

Alliance continues to have organizational standing to pursue prospective relief.

            C. The Equal Access Act Applies to Carver Middle School.
      The Equal Access Act applies to “any public secondary school which

receives Federal financial assistance” and permits noncurricular student groups to

use school facilities. 20 U.S.C. § 4071(a)–(b). The Act defines “secondary school”

as “a public school which provides secondary education as determined by State

law.” Id. § 4072(1) (emphasis added). So we must determine what “secondary

education” means under Florida law and whether Carver provides it. Although no

reported decisions of the Florida courts answer this question, “the goal of the

federal courts is to try to get the same result that would be reached in the state

courts.” Oliva v. Pan Am. Life Ins. Co., 448 F.2d 217, 221 (5th Cir. 1971). To

reach that goal, we must review how Florida law uses the term “secondary

education.” After surveying the relevant provisions of Florida law, we conclude

that secondary education, at least, means providing courses through which students

can obtain high school credit.

      Florida law does not expressly define “secondary education,” but it does

define the substantially similar term “adult secondary education” in its “K-20

Education Code.” Fla. Stat. §§ 1000–1013. “‘Adult secondary education’ means

courses through which a person receives high school credit that leads to the award


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of a high school diploma or courses of instruction through which a student prepares

to take the high school equivalency examination.” Id. § 1004.02(4) (emphasis

added). Because this section defines a term, we afford it great weight. See Antonin

Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 228

(2012).

      “Adult” modifies “secondary education” only to distinguish the kind of

student who receives the education. “Adult secondary education” is defined within

the chapter of the Education Code entitled “Public Postsecondary Education.” Fla.

Stat. ch. 1004. Later in the same chapter, Florida law establishes that locally

governed state colleges have two roles: the primary role is to provide

“postsecondary academic education and career degree education,” Fla. Stat.

§ 1004.65(5), and the subsidiary “role . . . includes the offering of programs in . . .

adult secondary education.” Id. § 1004.65(6) (emphasis added). “Adult” signifies

that it is adults, not adolescents, who receive education under this chapter.

      Other provisions of the Education Code also suggest that the term

“secondary education” means courses through which students can obtain high

school credit. One provision grants certain state colleges authority to “develop

charter schools that offer secondary education.” Id. § 1002.33(5) (emphasis

added). That provision establishes that students can “graduat[e]” from “high

school” at these charter schools, id., which supports the definition in section

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1004.02 that secondary education includes courses for which high school credit is

available. Another provision requires the Department of Juvenile Justice to provide

an educational program that includes, separately, “[s]econdary education” and

“[h]igh school equivalency examination preparation.” Id. § 1003.51(2)(h). To be

sure, the definition of “adult secondary education” in section 1004.02 includes

preparation for equivalency exams, and section 1003.51(2)(h) suggests that

“secondary education” does not include that preparation. But this provision raises

doubt only as to whether preparation for equivalency exams falls within

“secondary education.” It does not suggest that “secondary education” excludes

courses through which students can obtain high school credit. Finally, with a few

exceptions, colleges and universities in Florida require students to obtain a high

school diploma before enrolling in programs that provide post-secondary

education. Fla. Stat. §§ 1007.263(2)–(3) (associate degrees); State Univ. Sys. of

Fla., Reg. 6.002(1)(d) (bachelor’s degrees). Because “post-secondary education”

comes after “secondary education,” these provisions suggest that secondary

education encompasses courses provided for high school credit. When read

together, these provisions establish that a public school “provides secondary

education” if it provides courses through which students can obtain high school

credit.




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      Instead of arguing about whether Carver provides secondary education, both

parties argue about whether Carver is a “secondary school” under Florida law. The

district court ruled that Carver is not a “secondary school.” Until July 1, 2013,

Florida law defined “secondary schools” as “schools that primarily serve students

in grades 6 through 12.” Fla. Stat. § 1003.413(1) (2012) (repealed 2013). The

district court ruled, and the Board agrees, that because the legislature repealed the

definition, it intended to exclude middle schools from the term “secondary school.”

The Alliance and H.F. counter by citing several provisions that use the term

“secondary school” as if it encompasses middle schools.

      We do not find it persuasive that Florida repealed section 1003.413, which

included middle schools as secondary schools. To be sure, “secondary school” is

ordinarily understood as an institution “that provides secondary education.” See

Secondary School, Webster’s New International Dictionary 2261 (2d ed. 1961).

But if we concluded that Carver is not a secondary school under state law, that

conclusion would not foreclose the possibility that Carver could still “provide

secondary education” under state law.

      The dozens of Florida statutes that use the term “secondary school” do so

inconsistently. For example, one provision reads, “It is the intent of the Legislature

to provide assistance to all public secondary schools, with a primary focus on low-

performing middle and high schools.” Fla. Stat. § 1007.35(2)(b) (emphases added);

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cf. id. § 381.986 (prohibiting medical marijuana “[o]n the grounds of a preschool,

primary school, or secondary school”). This provision suggests that middle schools

are secondary schools. Yet, as the Board correctly argues, the definition of

“school” suggests the opposite because it appears to equate secondary and high

schools, id. § 1003.01, and another provision suggests that only high schools are

secondary schools because Florida law requires secondary schools to provide “a

course of study and instruction in the safe and lawful operation of a motor

vehicle,” id. § 1003.48. Because the term in the Equal Access Act that matters is

“secondary education,” not “secondary school,” we need not delve into this tangle

of provisions.

      We conclude that “secondary education,” under Florida law, means at least

“courses through which a person receives high school credit that leads to the award

of a high school diploma.” Id. § 1004.02(4). Carver Middle School provides

courses through which students can obtain high school credit. The Equal Access

Act applies to Carver Middle School.

                               IV. CONCLUSION

      We VACATE the order that dismissed the complaint under the Equal

Access Act and REMAND for further proceedings consistent with this opinion.




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