                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-15-2003

Donovan v. Punxsutawney Area
Precedential or Non-Precedential: Precedential

Docket No. 02-3897




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

Recommended Citation
"Donovan v. Punxsutawney Area" (2003). 2003 Decisions. Paper 322.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/322


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                           PRECEDENTIAL

                                         Filed July 15, 2003

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                     No. 02-3897


 MELISSA DONOVAN, A Minor, By MICHAEL DONOVAN
         and JULIE DONOVAN, Her Parents,
                  Plaintiff-Appellant,
                           v.
     THE PUNXSUTAWNEY AREA SCHOOL BOARD;
DR. J. THOMAS FRANTZ, Individually and in his Capacity
as Superintendent of the Punxsutawney Area High School;
   ALLEN TOWNS, Individually and in his Capacity as
  Principal of the Punxsutawney Area High School; and
   DAVID LONDON, Individually and in his Capacity as
    Principal of the Punxsutawney Area High School,
                 Defendants-Appellees.

      Appeal from the United States District Court
         for the Western District of Pennsylvania
                   (D.C. No. 02-CV-205)
   District Judge: The Honorable Donetta W. Ambrose

                 Argued: May 14, 2003
Before: RENDELL, SMITH and ALDISERT, Circuit Judges

                 (Filed: July 15, 2003)
       2


Lawrence G. Paladin, Jr. (argued)
Participating Attorney for The
 Rutherford Institute
Paladin Law Offices
1700 Frankstown Road, Suite 305
Pittsburgh, Pennsylvania
 15235-3049
John W. Whitehead
Steven H. Aden
Rita Dunaway
M. Casey Mattox
The Rutherford Institute
112 Whitewood Road
Charlottesville, Virginia 22901
COUNSEL FOR APPELLANT
Eric W. Treene (argued)
Ralph F. Boyd, Jr.,
 Assistant Attorney General
J. Michael Wiggins,
 Principal Deputy Attorney General
Mark L. Gross
Andrea Picciotti-Bayer
United States Department of Justice
Civil Rights Division
Appellate Section-PHB 5502
950 Pennsylvania Avenue NW
Washington, D.C. 20530-0001
AMICUS CURIAE IN SUPPORT
OF APPELLANT
Kimberlee Wood Colby
Gregory S. Baylor
Nathan A. Adams
Center for Law and Religious
 Freedom of the Christian Legal
 Society
4208 Evergreen Lane
Suite 222
Annandale, Virginia 22003
AMICUS CURIAE IN SUPPORT
OF APPELLANT
                                 3


                         Michael D. Seymour (argued)
                         Feczko and Seymour
                         Suite 520, Grant Building
                         310 Grant Street
                         Pittsburgh, Pennsylvania 15219
                         COUNSEL FOR APPELLEES


                  OPINION OF THE COURT

ALDISERT, Circuit Judge.
  Former Punxsutawney Area High School student Melissa
Donovan appeals from an adverse decision concluding that
the Equal Access Act did not entitle her to convene a Bible
club during her school’s morning “activity period” — a time
during which other noncurriculum related student groups
met. Specifically, she appeals from the District Court’s
denial of her motion for a preliminary injunction and the
court’s simultaneous determination that the “activity
period” did not qualify as “noninstructional time” under the
Equal Access Act, 20 U.S.C. § 4071 et seq., such that the
EAA’s limited open forum mandates were not triggered. She
also contends that the District Court incorrectly concluded
that the First Amendment’s Establishment Clause prohibits
the Bible club from meeting during the activity period.
   Because Donovan has graduated pending this review,1 we
conclude that her request for injunctive and declaratory
relief is moot, but that her claims for damages and
attorney’s fees remain viable. Accordingly, as part of
deciding whether the EAA requires that Punxsutawney Area
High School allow the Bible club to meet during the activity
period, we must determine, in particular, whether
“noninstructional time” encompasses the activity period at
issue so as to trigger the EAA. We conclude that it does. We
also conclude that PAHS has engaged in impermissible
viewpoint discrimination under the First Amendment and
that speculative Establishment Clause concerns do not

1. Although she has now graduated, the opening briefs were filed and
oral argument took place while she was still a student, during which
time she was referred to as such. We will do the same.
                              4


justify PAHS’s preventing the Bible club from meeting
during the activity period.

                              I.

                              A.
  Punxsutawney Area High School (PAHS) is a
Punxsutawney Area School District public secondary school
that receives federal financial assistance. Following a 10-
minute homeroom period each day from 8:05 a.m. to 8:15
a.m., PAHS holds an “activity period” from 8:15 a.m. until
8:54 a.m. During the activity period, students have free
reign in a closed universe. They may go to club meetings,
study hall or student government gatherings. They may
take make-up tests, hang out in the gymnasium or library,
or attend tutoring programs and college test prep clinics.
Alternatively, they may remain in homeroom. Students may
not, however, leave the campus. The first classroom period
begins immediately after this activity period.
   Through an informal permission process, PAHS grants
official recognition to the clubs that meet during the activity
period. With official recognition, a club may post signs
about upcoming meetings and gain access to the public
address system. Each club must have a faculty sponsor
who monitors — but is not required to participate actively
in — club meetings. Among the voluntary, noncurriculum
related groups that meet during the activity period are the
ski club, an anti-alcohol and anti-tobacco club called
Students Against Destructive Decisions, and the future
health services club.
  Appellant Melissa Donovan is a PAHS senior who leads a
Bible club known as FISH. The club — which focuses on
community services and other issues of concern to students
of [PAHS] from a Christian perspective — begins and ends
every meeting with a prayer. Although Donovan never
asked permission for FISH to meet as a club during the
activity period because she “knew” that the answer would
be “no,” Appellees Punxsutawney Area School Board,
District Superintendent J. Thomas Frantz, former PAHS
Principal Allen Towns and current PAHS Principal David
                              5


London have stipulated that FISH may not meet during the
activity period due to the club’s religious ties. FISH is not
recognized as an official school club, but the School Board
has permitted the club to meet at PAHS before mandatory
attendance from 7:15 a.m. until 7:50 a.m. — a time during
which no other club meets.

                             B.
   On January 23, 2002, Donovan — through her parents
— brought suit under the First Amendment, the Fourteenth
Amendment, 42 U.S.C. § 1983 and the Equal Access Act,
20 U.S.C. § 4071 et seq. In her initial complaint, she sought
“[a] temporary restraining order, a preliminary injunction,
and a permanent injunction” prohibiting the defendants
from denying her access to school facilities for the Bible
club during the activity period; “nominal damages,
presumed damages, and/or compensatory damages”;
“punitive damages”; and “all compensable costs and
attorney’s fees[.]” App. II at 4. She contended that PAHS
and the School Board improperly infringed on her First
Amendment right to free speech by denying FISH access to
school facilities solely on the basis of the club’s religious
nature. Donovan moved for a preliminary injunction to
force PAHS and the School Board to permit FISH to meet
during the activity period pending a final decision. After a
hearing, the District Court denied the motion in its
Findings of Fact, Conclusions of Law and Order of
September 13, 2002, concluding that Donovan was not
likely to succeed on the merits of her claims. The District
Court held that the EAA did not apply to the activity period
because the activity period did not qualify as
“noninstructional time” as that term is defined in the
statute. It also held that the school’s refusal to allow the
club to meet during the activity period did not violate the
First Amendment because school officials had a compelling
interest in not violating the Establishment Clause —
outweighing Donovan’s First Amendment interests.
  On October 10, 2002, upon the agreement of the parties
that the district court’s denial of the preliminary injunction
resolved all the issues, the district court entered a Final
                              6


Order closing the case and denying all relief. On October
16, 2002, Donovan filed a timely Notice of Appeal.
   We heard oral argument in this case on May 14, 2003.
On June 4, 2003, this court requested Letter Briefs from
each party on the issue of mootness. Donovan graduated
from PAHS on June 6, 2003.

                             C.
  The United States District Court for the Western District
of Pennsylvania had jurisdiction of the underlying action
pursuant to 28 U.S.C. § 1331 based on Donovan’s claims
under the First Amendment, Fourteenth Amendment, 42
U.S.C. § 1983 and the Equal Access Act, 20 U.S.C. § 4071
et seq. Moreover, the court also had jurisdiction pursuant
to 28 U.S.C. § 1343 of Appellant’s civil rights claims. This
court has jurisdiction pursuant to 28 U.S.C. § 1291.

                             II.
   At the outset, we must address whether Appellant’s
request for injunctive and declaratory relief has become
moot because she no longer attends PAHS. Although the
parties did not raise the issue in their original briefs, we
resolve the issue sua sponte because it implicates our
jurisdiction. See Rogin v. Bensalem Township, 616 F.2d
680, 684 (3d Cir. 1980) (“Inasmuch as mootness would
divest us of jurisdiction to consider this appeal, we are
obligated to address this issue as a threshold matter.”)
(footnote omitted).

                             A.
   The Constitution limits this court’s jurisdiction to the
adjudication of actual cases and controversies. U.S. CONST.
art. III, § 2; DeFunis v. Odegaard, 416 U.S. 312, 316 (1974)
(per curiam). “[A] case is moot when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.” Powell v. McCormack, 395 U.S.
486, 496 (1969). The court’s ability to grant effective relief
lies at the heart of the mootness doctrine. County of Morris
v. Nationalist Mvmt., 273 F.3d 527, 533 (3d Cir. 2001). That
                              7


is, “[i]f developments occur during the course of
adjudication that eliminate a plaintiff ’s personal stake in
the outcome of a suit or prevent a court from being able to
grant the requested relief, the case must be dismissed as
moot.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,
698-699 (3d Cir. 1996). This requirement that a case or
controversy be “actual [and] ongoing” extends throughout
all stages of federal judicial proceedings, including appellate
review. Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 193
(3d. Cir. 2001). If a case has become moot after the district
court’s entry of judgment, an appellate court no longer has
jurisdiction to entertain the appeal. Mills v. Green, 159 U.S.
651, 653 (1895).
   “The availability of declaratory [and injunctive] relief
depends on whether there is a live dispute between the
parties.” Powell v. McCormack, 395 U.S. 486, 517-518
(1969) (citation omitted); Jersey Cent. Power & Light Co. v.
New Jersey, 772 F.2d 35, 40 (3d Cir. 1985) (“A declaratory
judgment is available only so long as there is an actual
controversy [between] the parties.”). When a student
challenges the constitutionality of a school policy,
graduation typically moots her claim for injunctive or
declaratory relief. See, e.g., Bd. of Sch. Comm’rs of
Indianapolis v. Jacobs, 420 U.S. 128, 129 (1975) (per
curiam) (“[Once] all of the named plaintiffs in the action
[have] graduated . . . a case or controversy no longer
exists.”); Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir.
2003) (“[Students’] claims for declaratory and injunctive
relief generally become moot when they graduate.”); Stotts
v. Cmty. Sch. Dist. No. 1, 230 F.3d 989, 991 (7th Cir. 2000)
(holding that the “case lacks a live controversy [because the
plaintiff] has graduated”); Cole v. Oroville Union High Sch.
Dist., 228 F.3d 1092, 1098 (9th Cir. 2000), cert. denied,
532 U.S. 905 (2001) (“It is well-settled that once a student
graduates, he no longer has a live case or controversy
justifying declaratory and injunctive relief against a school’s
action or policy.”); Penderson v. La. State Univ., 213 F.3d
858, 874-875 (5th Cir. 2000) (finding injunctive claims
mooted by student’s graduation).

                              B.
  We have held, however, that graduation from school does
not automatically render a case moot if the student’s claims
                                   8


are “capable of repetition, yet evading review.” Brody ex rel.
Sugzdinis v. Spang, 957 F.2d 1108, 1113-1115 (3d Cir.
1992). This extremely narrow exception to the mootness
doctrine is applicable only where: 1) the challenged action
is too short in duration to be fully litigated before the case
will become moot; and 2) there is a reasonable expectation
that the complaining party will be subjected to the same
action again. Weinstein v. Bradford, 423 U.S. 147, 149
(1975) (per curiam).
  We begin with the first prong of the test. Although we
quite reasonably concluded in Brody that the challenge to
religious speech in a graduation ceremony by students who
had not yet graduated was not moot because the length of
the senior year was “clearly too short to complete litigation
and appellate review of a case of this complexity,” Brody,
957 F.2d at 1113 (citing Bd. of Educ. v. Rowley, 458 U.S.
176, 186 n.9 (1982)), the exception cannot rescue
Donovan’s appeal from the perils of mootness. A case
challenging PAHS’s ban of the Bible club from the activity
period will not always evade review. A PAHS sophomore, for
example, who challenges the ban would enjoy a three-year
window in which to litigate the issue to completion.
Donovan graduated on June 6, 2003, and she no longer
has a reasonable expectation of being subjected to the
policy.
  As to the second prong, there is no reasonable
expectation that Donovan will be subjected to the same
action again.2 She has graduated and will never again
return to PAHS as a student. This court may not grant her
injunctive relief, as such relief would have no impact on her
whatsoever.

2. We do note that parents independently have standing to bring
constitutional challenges to the conditions in their children’s schools.
Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 224 n.9
(1963); Brody, 957 F.2d at 1114. If Donovan’s parents had another child
in the PAHS system and would “confront the same barriers to religious
speech when their children” reach high school, we could potentially find
that the present dispute was capable of repetition as to them. Brody, 957
F.2d at 1114. See also Honig v. Doe, 484 U.S. 305, 320-322 (1988).
Donovan’s counsel, nonetheless, has provided no information in this
regard, and we do not entertain the argument here.
                                      9


  Accordingly, Donovan’s              claim     for    declaratory       and
injunctive relief is moot.3

                                    III.
   When a specific claim becomes moot after the entry of a
district court’s final judgment and prior to the completion
of appellate review, we have the power to vacate the district
court’s judgment as to that claim. United States v.
Munsingwear, 340 U.S. 36, 39 (1950); Bagby v. Beal, 606
F.2d 411, 414 (3d Cir. 1979). The Munsingwear rule is an
equitable one that is “commonly used . . . to prevent a
judgment, unreviewable because of mootness, from
spawning any legal consequences.” Munsingwear, 340 U.S.
at 41. Vacatur of the lower court’s judgment “is warranted
only where mootness has occurred through happenstance
— circumstances not attributable to the parties.” Arizonans
for Official English v. Arizona, 520 U.S. 43, 71 (1997);
Jersey Cent. Power & Light v. New Jersey, 772 F.2d 25, 26-
27 (3d Cir. 1985). “Munsingwear should not be applied
blindly, but only after a consideration of the equities and
the underlying reasons for mootness.” Humphreys v. Drug
Enforcement Admin., 105 F.3d 112, 113-114 (3d Cir. 1996).
Accordingly, neither “mootness by reason of settlement,”
U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S.
18, 29 (1994), nor mootness due to the voluntary act of the
losing party, Karcher v. May, 484 U.S. 72, 82-83 (1987),
justifies vacatur of a judgment under review.
  Because Donovan’s claims for declaratory and injunctive
relief became moot through happenstance, and for the
reasons that follow, we exercise our power to vacate the

3. Although Donovan’s counsel has stated that he intends to add a party
pursuant to Federal Rule of Civil Procedure 21, we will not rule on the
propriety of substituting a party via that method. In the absence of a
motion to add, any ruling by this court on the issue would constitute
nothing but an advisory opinion, contravening the Constitution’s
limitation of federal jurisdiction to actual cases and controversies. See
Travelers Ins. Co. v. Obusek, 72 F.3d 1148, 1153 (3d Cir. 1995) (quoting
Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 410 (3d Cir. 1992))
(“[Article III, section 2 of the Constitution] ‘stands as a direct prohibition
on the issuance of advisory opinions.’ ”).
                              10


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

                              IV.
   Although Donovan’s claim for declaratory and injunctive
relief is moot, her damages and attorney’s fees claims
continue to present a live controversy. Boag v. MacDougall,
454 U.S. 364 (1982) (holding that the transfer to another
prison did not moot a claim for damages arising from
placement in solitary confinement); Jersey Cent. Power &
Light Co. v. New Jersey, 772 F.2d 35, 41 (3d Cir. 1985)
(“[T]he availability of damages or other monetary relief
almost always avoids mootness. . . . Damages should be
denied on the merits, not on the grounds of mootness.”).
We shall therefore review the district court’s determination,
bound up in its October 10, 2002 final order, that Donovan
is not entitled to money damages and attorney’s fees.

                              A.
  Where . . . the facts are not in dispute and the parties
challenge the choice, interpretation, and application of legal
precepts, our review is plenary.” Gregoire v. Centennial Sch.
Dist., 907 F.3d 1366, 1370 (3d Cir. 1990).

                              B.
  More than 20 years ago in Widmar v. Vincent, 454 U.S.
263 (1981), the Supreme Court held that a state college
that sponsored a limited public forum violated the First
Amendment when the college denied a religious student
organization equal access to its facilities. As a corollary, the
Court also held that permitting equal access would not
contravene the First Amendment’s Establishment Clause.
Id. at 276-277.
   Although the Court squarely addressed the parameters
of the limited public forum in the public university context,
it left unresolved the question of whether the case’s
holding extended to public secondary schools. Indeed, the
Court distinguished younger students from their
                                   11


“less impressionable” college counterparts, who should
understand that a policy of equal access for religious
groups does not imply impermissible state endorsement of
religion. Id. at 274 & n.14; Pope v. E. Brunswick Bd. of
Educ., 12 F.3d 1244, 1245 (3d Cir. 1993).
   It was against this backdrop that we decided Bender v.
Williamsport Area Sch. Dist., 741 F.2d 538 (3d Cir. 1984),
vacated on other grounds, 475 U.S. 534 (1986) — a case in
which we held that equal access for religious groups in
public secondary schools violated the Establishment Clause
by focusing on the differences between high school and
college environments.4 Although we took account of the
time-tested axioms that students do not shed their rights to
freedom of speech at the schoolhouse gate, Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969),
and that “religious worship and discussion . . . are forms of
speech and association protected by the First Amendment,”
Widmar, 454 U.S. at 269, we began by only tentatively
concluding that the secondary school had created a limited
public forum when it excluded a student prayer group from
meeting during a regularly scheduled student activity
period nearly identical to the one at PAHS. Bender, 741
F.2d at 548. In subsequently applying the second prong of
the talismanic Lemon v. Kurtzmann test to determine
whether permitting the group to meet would have the effect
of advancing or inhibiting religion (and thus would violate
the First Amendment’s Establishment Clause), we noted
that “high school students stand in a very different position
than university students in terms of maturity and
impressionability[, as they] would be less able to appreciate

4. The Supreme Court ultimately vacated Bender on the ground that the
respondent — an individual member of the School Board — lacked
standing to appeal from a declaratory judgment against the School
Board itself. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 549
(1986), vacating on other grounds, Bender v. Williamsport Area Sch. Dist.,
741 F.2d 538 (3d Cir. 1984). Accordingly, the Court did not treat the
First Amendment issues that we discussed.
  In vacating our opinion, the Supreme Court stripped Bender of any
force of law, and we are not controlled by it in any way, shape, or form.
But because the district court leaned so heavily on our lifeless Bender
holding to reach its conclusion, we shall address its content here.
                             12


the fact that permission for [the prayer group] to meet
would be granted out of a spirit of neutrality toward religion
and not advancement.” Id. at 552. In light of this maturity
difference and the additional fact that state law mandates
compulsory attendance, we held that permitting the prayer
group to meet would contravene the Establishment Clause
because “the danger of communicating . . . state approval
of religion” would outweigh free speech concerns. Id. at
555.

                             C.
   Congress, however, spoke very loudly in the days
following Bender by enacting the Equal Access Act in 1984
to answer the very question left open by the majority in
Widmar — namely, whether permitting equal access to
religious groups in the public secondary school setting
would violate the Establishment Clause. Equal Access Act,
Pub. L. 98-3771, 98 Stat. 1302 (codified at 20 U.S.C.
§§ 4071-4074). Congress believed that it would not.
   With the EAA, Congress specifically made it “unlawful for
any public secondary school which receives federal financial
assistance and which has a limited open forum to deny
equal access” to student groups based on the religious or
other content-based nature of the speech at their proposed
meetings. 20 U.S.C. § 4071(a). Congress passed the statute
to address perceived widespread discrimination against
religious speech in public schools. H.R. REP. NO. 98-710, at
4 (1984); S. REP. NO. 98-357, at 10-11 (1984). In particular,
committee reports show that the EAA was enacted partly in
response to two federal appellate court decisions holding
that student religious groups could not, consistent with the
Establishment Clause, meet on school premises during
noninstructional time. H.R. REP. NO. 98-710, at 3-6
(discussing Lubbock Civil Liberties Union v. Lubbock Indep.
Sch. Dist., 669 F.2d 1038, 1042 (5th Cir. 1982), cert.
denied, 459 U.S. 1155-1156 (1983), and Brandon v.
Guilderland Bd. of Educ., 635 F.2d 971 (2d Cir. 1980), cert.
denied, 454 U.S. 1123 (1981)); S. REP. NO. 98-357, at 6-9
(1984) (same).
  Although not mentioned by members of the House or
Senate, Bender is precisely the sort of decision that
                             13


motivated Congress to pass the EAA. The District Court
saw Bender as controlling, but we disagree, for important
congressional activity and judicial interpretations of that
activity took place after we issued that decision. Bender
came down on July 24, 1984; the EAA went into effect on
August 11, 1984. In Bd. of Educ. of Westside Cmty. Schs.
v. Mergens, the Supreme Court held that the EAA did not,
at least on the facts presented there, contravene the
Establishment Clause. 496 U.S. 226, 253 (1990). And for
the reasons set forth therein, we conclude that the same
determination is mandated under the facts in the case at
bar.
  There is no doubt that the EAA and its jurisprudential
progeny control our interpretation of the case before us
today. See Mergens, 496 U.S. at 239 (relating the legislative
purposes behind the EAA); Pope, 12 F.3d at 1245 (noting
the transition from Bender to the EAA and applying the
EAA in an equal access scenario). Moreover, the Supreme
Court vacated Bender — albeit on different grounds — in
1986, rendering completely hollow the case on which the
district court pinned its discussion. Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 549 (1986), vacating on other
grounds, Bender v. Williamsport Area Sch. Dist., 741 F.2d
538 (3d Cir. 1984).
  It is now opportune to discuss the EAA and the
experience of the judiciary in interpreting it.

                             V.
   The EAA provides that it is “unlawful for any public
secondary school which receives federal financial assistance
and which has a limited open forum to deny equal access
. . . to . . . any students who wish to conduct a meeting
within that limited open forum on the basis of the religious
. . . content of the speech at such meetings.” 20 U.S.C.
§ 4071(a). Different from the “term of art” of the “limited
public forum” established by the Supreme Court in its free
speech cases, Mergens, 496 U.S. at 242, Congress
determined that a “limited open forum” is created
“whenever such school grants an offering to or opportunity
for one or more noncurriculum related student groups to
                            14


meet on school premises during noninstructional time.” 20
U.S.C. § 4071(b). “Meeting” is defined to include “those
activities of student groups which are permitted under a
school’s limited open forum and are not directly related to
the     school    curriculum.”     20    U.S.C.   § 4072(3).
“Noninstructional time” is defined to mean “time set aside
by the school before actual classroom instruction begins or
after actual classroom instruction ends.” 20 U.S.C.
§ 4072(4). “Thus, even if a public secondary school allows
only one ‘noncurriculum related student group’ to meet, the
Act’s obligations are triggered and the school may not deny
other clubs, on the basis of the content of their speech,
equal access to meet on school premises during
noninstructional time.” Mergens, 496 U.S. at 236.
  In Mergens, the Supreme Court defined the term
“noncurriculum related student group” as “one that has
more than just a tangential or attenuated relationship to
courses offered by the school. . . . It follows, then that a
student group that is ‘curriculum related’ must have a
more direct relationship to the curriculum than a religious
or political club would have.” 496 U.S. at 238. The Court
then remarked that “the term ‘noncurriculum related
student group’ is best interpreted broadly to mean any
student group that does not directly relate to the body of
courses offered by the school.” Id. at 239.
  Three years after Mergens, we distilled the Supreme
Court’s description into a four-part test for determining
when a student group directly relates to the school
curriculum:
    1. The group’s subject matter is (or soon will be)
    taught in a regularly offered course;
    2. The group’s subject matter concerns the body of
    courses as a whole;
    3. Participation in the      group   is   required   in   a
    particular course; or
    4. Academic credit is given for participation in the
    group.
Pope v. E. Brunswick Bd. of Educ., 12 F.3d 1244, 1251 (3d
Cir. 1990). Explicating this test, we emphasized that “the
                             15


subject matter of the student group must be taught in a
class. Thus, a chess club does not become curriculum-
related merely because its subject matter relates to
mathematics and science by building the ability to engage
in critical thought processes; unless chess is actually
taught, the club is a noncurriculum related student group.”
Id. at 1253.
  Applying its own test, the Supreme Court deemed a
scuba diving club (the Subsurfers) and the Peer Advocates
— a service group that worked with special education
classes — “noncurriculum related groups” because they did
“not directly relate to the curriculum as a whole” or “to any
courses offered by the school and [were] not required by
any courses offered by the school.” Mergens, 496 U.S. at
245-246. In Pope, we placed the Key Club — a community
service group that “assists and enhances the students in
developing their civic responsibilities to the community” —
into the category of “noncurriculum related student
groups.” Pope, 12 F.3d at 1252. Notwithstanding the Board
of Education’s characterization of the Key Club as a
“service organization [that] draw[s] upon all curricula
areas,” we embraced the Supreme Court’s position in
Mergens that “school systems [may not] evade the Act’s
requirements ‘by strategically describing existing student
groups.’ ” Id. at 1253 (quoting Mergens, 496 U.S. at 244).
  The case before us presents no such complex problem on
this front. PAHS allows a ski club and an anti-drug and
-alcohol club (Students Against Destructive Decisions),
among others, to meet during the school’s activity period.
These clubs are even less tangentially related to the
curriculum than was the Key Club in Pope. Accordingly, the
door to the limited open forum designation is ajar, but not
yet wide open.

                            VI.
  The issue then comes whether the activity period during
which at least one “noncurriculum related group” meets
constitutes “noninstructional time” under the EAA. The
EAA defines “noninstructional time” as “time set aside by
the school before actual classroom instruction begins or
                            16


after actual   classroom   instruction   ends.”   20   U.S.C.
§ 4072(4).
  Because neither this court nor the Supreme Court has
yet to expound on the meanings of “noninstructional time”
or “actual classroom instruction,” we begin with the “plain
meaning of [the] statute.” United States v. Hodge, 321 F.3d
429, 436 (3d Cir. 2003); see also Smith v. Fid. Consumer
Disc. Co., 898 F.2d 907, 909 (3d Cir. 1990) (“The starting
point for interpreting a statute is the language of the
statute itself.”). Where the intent of Congress “has been
expressed in reasonably plain terms, that language must
ordinarily be regarded as conclusive.” Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 570 (1982). “Recourse to
the legislative history . . . is unnecessary in light of the
plain meaning of the statutory text.” Zubi v. AT&T Corp.,
219 F.3d 220, 231 (3d Cir. 2000) (quoting Darby v.
Cisneros, 509 U.S. 137, 147 (1993)).
  The plain meaning of “noninstructional time,” as defined
in § 4072(4), is time set aside by the school before actual
classroom instruction begins or after actual classroom
instruction ends. The very phrases “noninstructional time”
and “actual classroom instruction” demonstrate that there
may very well be times in the school day during which
students would not be receiving “actual classroom
instruction.”
  Under this reading that is both plain and coherent, the
PAHS activity period falls into the category of
“noninstructional time.” At PAHS, actual classroom
instruction for all students does not begin until after the
conclusion of the activity period at 8:54 a.m. During the
activity period, at least one noncurriculum related group
meets. Other students may take make-up tests or attend
tutoring programs and college test prep clinics — two
activities more closely related to actual classroom
instruction.
  That some students, however, may seek to engage in
classroom instruction during the activity period does not
render the entire period “instructional time” — much as
having a carton of spoiled milk in the refrigerator does not
mean that the apples, tomatoes and butter are rotten and
                             17


rancid too. Simply because the period may fall within the
more general parameters of the school day does not
indicate that all time within those parameters necessarily
constitutes actual classroom instruction.

                             A.
  Nevertheless, the district court’s reasoning appeared to
mirror that of a particular case from the Court of Appeals
for the Ninth Circuit, Prince v. Jacoby, 303 F.3d 1074, 1088
(9th Cir. 2002) — a decision that stands for the proposition
that mere mandatory attendance marks the beginning of
actual classroom instruction. After citing Ceniceros v. Bd. of
Trustees of the San Diego Unified Sch. Dist., 106 F.3d 878,
880 (9th Cir. 1996) for the proposition that “[w]e have
already held that the plain meaning of “noninstructional
time” is defined unambiguously in the statute as the “time
set aside by the school before actual classroom instruction
begins or after classroom instruction ends,” the Prince
panel picked apart the plain and coherent meaning of
“actual classroom instruction.” Id. Looking to legislative
history, the panel reasoned that mandatory attendance
combined with the availability of some classroom
instruction gave rise to “actual classroom instruction” and
thus transformed the student/staff time into “instructional
time.” Id. Accordingly, it concluded that Spanaway Lake
High School’s “student/staff time” did not qualify as
“noninstructional time” because Spanaway Lake’s students
— unlike the Ceniceros students — were required to be in
attendance during the period. Id. The district court, too,
hung its hat on this “mandatory attendance” rationale.
Donovan v. Punxsutawney Area Sch. Bd., No. 02-205, at 6
(W.D. Pa. Oct. 10, 2002).
   But in a court as large as the Ninth Circuit, where the
full court does not have the advantage of studying every
panel’s proposed opinion prior to publication as we do here,
it is not a rare event for one panel to overlook the reasoning
of a previous panel on the same subject. Even though the
Prince panel set forth an isolated quotation from the court’s
previous opinion in Ceniceros, its reasoning and decision
seem to fly squarely in the face of what should have been
                             18


considered binding precedent in that court. It is to
Ceniceros that we now turn.

                             B.
   Focusing on the temporal aspect of the EAA, the Ninth
Circuit in Ceniceros held that a lunch period in the heart of
the school day — during which several noncurriculum
related student groups met and during which no “actual
classroom instruction” was offered — qualified as
“noninstructional time” because it was “time set aside by
the school before actual classroom instruction begins or
after classroom instruction ends.” Ceniceros, 106 F.3d at
880. It reasoned that a direct reading of the EAA dovetails
perfectly with the purpose of the legislation and with the
Mergens Court’s principles for construing it. Id. at 881.
Recalling that the Supreme Court repeatedly noted that the
EAA “must be given a ‘broad reading’ [to fulfill the EAA’s
broad purpose],” the Ceniceros panel concluded that “[o]nly
by interpreting ‘noninstructional time’ to include lunch
periods can we adhere to the Supreme Court’s instruction
and have our interpretation be ‘consistent with Congress’
intent to provide a low threshold for triggering the Act’s
requirements.” Id. (quoting Mergens, 496 U.S. at 239, 240).
   To be sure, decisions of a sister court of appeals never
have the strong bite of precedent in this court.
Jurisprudentially speaking, they are considered persuasive
argument only, and we are free to accept or reject any of
their decisions. We accept Ceniceros and reject Prince
because we believe that these two cases cannot be
reconciled. We are persuaded that the Ceniceros panel
followed precisely the same analytical roadmap that we
followed in interpreting “noninstructional time.” We are
similarly persuaded that the Prince panel ignored both the
teachings    of   Ceniceros     and    the   definition  of
“noninstructional time” set forth in the EAA.
  As stated before, the EAA defines “noninstructional time”
as “time set aside by the school before actual classroom
instruction begins or after actual classroom instruction
ends.” 20 U.S.C. § 4072(4). The Prince panel conceded that
“student/staff time [at Spanaway High] is a scheduled class
                             19


where attendance is taken, and where no formal classroom
instruction takes place, except on a voluntary, individual
basis. During this time, a student may work on homework,
receive one-on-one tutoring with a teacher, attend school
assemblies, or, with prior arrangement and scheduling,
participate in a student club meeting. Students are not
permitted to leave campus, and attendance is taken.” 303
F.3d at 1087 (emphasis added). Having conceded that “no
formal classroom instruction takes place,” the Prince panel
should have followed the mandatory logical rules of the
categorical deductive syllogism to conclude that the activity
period fell before or after “actual classroom instruction,”
thus qualifying under the statute. The student/staff time in
Prince fell in the middle of the instructional school day,
sandwiched between definite periods of “actual classroom
instruction” — a temporal framework identical to the
lunchtime scenario in Ceniceros.

                             C.
  To conclude that mandatory attendance means that any
school period is actual classroom instruction is to undercut
both the specific the language and the statutory purpose of
the EAA. In Mergens, a Supreme Court plurality found this
time limitation significant because it cleverly avoids the
problem of mandatory attendance requirements during
religion-oriented sessions, which the Court had previously
struck down. Mergens, 496 U.S. at 251 (citing Edwards v.
Aguillard, 482 U.S. 578, 584 (1987) — a case invalidating
a state law requiring the teaching of creationism to
students during science classes for which attendance was
mandatory). See also Santa Fe Indep. Sch. Dist. v. Doe, 530
U.S. 290, 309-310 (2001) (equating a policy of mandatory
prayer before public school football games with school
sponsorship of religion and noting that some students must
attend the games due to seasonal commitments).
  Although PAHS students must stay at the school during
the activity period, they need not attend the FISH Bible
club’s meeting — or any meeting, for that matter. It is not
mandatory attendance at the school, but mandatory
attendance at the group’s meeting that raises Establishment
Clause concerns.
                                    20


   In drafting the EAA, Congress could have said “before or
after the school day” or “before or after classes,” but it did
not. Instead, it used the concept of “actual classroom
instruction,” which we take to mean classroom instruction
in discrete areas.
   It is beyond dispute that the PAHS activity period kicks
off “before actual classroom instruction begins,” as it comes
after a homeroom period during which no classroom
instruction occurs. Once again, just as “schools may not
evade the Act’s requirements ‘by strategically describing
existing student groups,’ ” Pope, 12 F.3d at 1253 (quoting
Mergens, 496 U.S. at 244), they may not do so by
strategically describing an activity period. Just as putting a
“Horse” sign around a cow’s neck does not make a bovine
equine, a school’s decision that a free-wheeling activity
period constitutes actual classroom instructional time does
not make it so.

                                    D.
   The district court was also ill-advised to rely on the
circumstance that the school district and the state school
board count the “activity period” toward the state’s
minimum number of hours of “instruction time” as a
rationale for neglecting to classify the activity period as
“noninstructional time.”5 Donovan v. Punxsutawney Area
Sch. Bd., No. 02-205, at 6 (W.D. Pa. Oct. 10, 2002).
Contrary to the District Court’s implication, we conclude
that the state’s interpretation of the broad phrase

5. The Punxsutawney Area School District counts the activity period as
“instructional time” for purposes of complying with Pennsylvania’s
minimum length of an instructional school day. 22 PA. CODE § 51.61
(2002). Pennsylvania law permits schools to count activity other than
“actual classroom instruction” in calculating the length of the school’s
instructional day. Under Pennsylvania law, “instruction time” is defined
as “the time during the school day which is devoted to instruction and
activities provided as an integral part of the school program under the
direction of certified school employees.” Id. State school board guidelines
include “[a]ssemblies, clubs, student councils, and similar activities
conducted during school hours” as among those activities which may be
counted as pupil instruction time. Basic Education Circulars, Instruction
Time and Act 80 Exceptions, 24 P.S. § 15-1504 (July 1, 2001).
                              21


“instructional time” by definition is much more inclusive
than the EAA’s restrictive measurement of “actual
classroom instruction.”; therefore, it is not controlling. The
Supremacy Clause establishes that, for the purposes of
EAA application, state law cannot be used to frustrate
application of federal law. U.S. CONST. art. VI, § 1, cl. 2.
   Once again, in Mergens, the Supreme Court stated that
allowing school systems to define terms in a way that
“permits schools to evade the Act . . . would render the Act
merely hortatory.” 496 U.S. at 244. School systems cannot
be permitted to evade application of the EAA by stating that
a period that is otherwise a “limited open forum” does not
constitute “noninstructional time” under the EAA simply
because the school system chooses to count that time
toward the state minimum number of hours of instruction
time.

                             VII.
   Having concluded that PAHS violated the EAA, we now
turn to Donovan’s First Amendment claim under 42 U.S.C.
§ 1983. The district court concluded that the PAHS activity
period was a limited public forum for which the Bible club
restriction was narrowly tailored to serve a compelling state
interest — namely, avoiding a possible transgression of the
First Amendment’s Establishment Clause. Donovan v.
Punxsutawney Area Sch. Bd., No. 02-205, at 7-8 (W.D. Pa.
Oct. 10, 2002). We disagree.

                              A.
   In evaluating the claim that Donovan’s First Amendment
rights have been violated, we have a “constitutional duty to
conduct an independent evaluation of the record as a
whole, without deference to the trial court.” Christ’s Bride
Ministries v. SEPTA, 148 F.3d 242, 247 (3d Cir. 1998)
(citation omitted).

                              B.
  The First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech . . . or the right
                             22


of the people to peacefully assemble.” U.S. CONST. amend I.
Religious worship and discussion “are forms of speech and
association protected by the First Amendment.” Widmar v.
Vincent, 454 U.S. 263, 269 (1981).
   Generally, the government may limit speech that takes
place on its own property without running afoul of the First
Amendment. Lamb’s Chapel v. Center Moriches Union Free
Sch. Dist., 580 U.S. 384, 390 (1993); Christ’s Bride, 148
F.3d at 247. Where, however, the property at issue is a
traditional public forum or a forum designed as public by
the government, the First Amendment hinders the
government’s ability to restrict speech. Perry Educ. Ass’n v.
Perry Local Educators Ass’n, 460 U.S. 37, 45-46 (1983);
Christ’s Bride, 148 F.3d at 247. A limited public forum —
a subcategory of the designated public forum — “is created
when the government opens a nonpublic forum but limits
the expressive activity to certain kinds of speakers or to the
discussion of certain kinds of subjects.” Kreimer v. Bureau
of Police, 958 F.2d 1242, 1246-1247 (3d Cir. 1992) (citation
omitted). Donovan and Appellees agree that the PAHS
activity period is a limited public forum, and we will treat
the period as such.
   Although the government may indeed restrict the limited
public forum to certain subjects and certain speakers, the
government “may not discriminate against speech on the
basis of viewpoint, and the restriction must be reasonable
in light of the purpose served by the forum.” Good News
Club v. Milford Cent. Sch., 533 U.S. 98, 106-107 (2001).
With regard to viewpoint restrictions, “speech discussing
otherwise permissible subjects cannot be excluded from a
limited public forum on the ground that the subject is
discussed from a religious viewpoint.” Id. at 112; see also
Rosenberger v. Rector & Visitors of the Univ. of Va., 515
U.S. 819 (1995) (holding that a university engaged in
improper viewpoint discrimination when it denied student
activities funds to a student magazine addressing public
policy issues from a Christian perspective); Lamb’s Chapel
v. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)
(holding that a school’s refusal to permit an organization
access to school facilities at night to show a film about
family issues from a religious perspective constituted
impermissible viewpoint discrimination).
                              23


  FISH is a group that discusses current issues from a
biblical perspective, and school officials denied the club
equal access to meet on school premises during the activity
period solely because of the club’s religious nature.
   Accordingly, we hold that the exclusion constitutes
viewpoint discrimination. “Because the restriction is
viewpoint discriminatory, we need not decide whether it is
unreasonable in light of the purposes served by the forum.”
Good News Club, 533 U.S. at 107.

                              C.
  The district court concluded that PAHS’s “interest in
protecting free speech within the context of the activity
period as it exists at . . . PAHS is most likely outweighed
by” an Establishment Clause violation, if the Bible group
were permitted to meet. Donovan v. Punxsutawney Area
Sch. Bd., No. 02-205, at 10 (W.D. Pa. Oct. 10, 2002). We
disagree.

                              1.
  Although     government    interest  in    avoiding      an
Establishment Clause violation may be characterized as
compelling and thus justify content-based discrimination,
Widmar v. Vincent, 454 U.S. 263, 271 (1981), it is “not clear
whether a State’s interest in avoiding an Establishment
Clause violation would justify viewpoint discrimination.”
Good News Club, 533 U.S. at 113. We need not confront
this thorny issue in this case because the school has no
valid Establishment Clause interest.
  The      Supreme       Court    has      repeatedly  rejected
Establishment Clause defenses in free speech cases. See,
e.g., Good News Club, 533 U.S. at 113; Lamb’s Chapel, 508
U.S. at 395; Widmar, 454 U.S. at 272-273. To determine
whether such a defense is viable, we first consider an
action’s “ ‘neutrality toward religion.’ ” Good News Club, 533
U.S. at 114 (quoting Rosenberger, 515 U.S. at 839).
Appellees do not take issue with this aspect of the inquiry
and implicitly agree that “allowing the Club to speak on
school grounds would ensure neutrality, not threaten it.”
Good News Club, 533 U.S. at 114.
                              24


                              2.
  Donovan and Appellees come to blows, however, over
whether “a meeting of a religious group during the activity
period which occurs during instructional hours where
attendance is compulsory, when conducted in the constant
presence of school[-]appointed monitors, carries with it the
impression of official approval and endorsement [of
religion].” Donovan v. Punxsutawney Area Sch. Bd., No. 02-
205, at 9 (W.D. Pa. Oct. 10, 2002). The district court
believed that it did, but we find the argument
unpersuasive.
   In Good News Club, the Supreme Court leaned heavily on
the fact that after-school meetings by the religious club at
issue in that case “would not implicate activity by the
school during the school day” to resolve that students
would not perceive that the government had endorsed
religion by permitting the group to meet. 533 U.S. at 115 &
n.7. Searching valiantly for a potential loophole, Appellees
seize on Illinois ex rel. McCollum v. Bd. of Educ. of Sch. Dist.
No. 71, Champaign City, 333 U.S. 203 (1948), for the
proposition that the availability of religious discussion
during a time of compulsory attendance unconstitutionally
advances religion. In McCollum, the school district excused
students from their normal classroom study during the
regular schoolday to attend classes taught by sectarian
religious teachers, who were subject to approval by the
school superintendent. Id. at 209. Under these
circumstances, this Court found it relevant that “the
operation of the State’s compulsory education system . . .
assisted and was integrated with the program of religious
instruction carried on by separate religious sects.” Id.
  In the present case, in contrast, PAHS simply permits
students to participate in a broad range of student
activities during noninstructional time, and Donovan
merely seeks an equal opportunity to express herself along
with other like-minded students. The varied options
available to PAHS students, the voluntariness of student
participation, and the fact that any religious speech
engaged in would be initiated by students themselves
militate against any government endorsement of or
                             25


entanglement with religion if FISH were to have been able
to meet during the activity period.
   With regard to whether the presence of school monitors
at a Bible club meeting would carry with it the imprimatur
of a government’s endorsement of religion, we note that the
Equal Access Act prohibits monitors from participating in
religious meetings, as well as school sponsorship of those
meetings. 20 U.S.C. §§ 4071(c)(2)-4071(c)(5). “[C]ustodial
oversight of the student-initiated religious group, merely to
ensure order and good behavior, does not impermissibly
entangle government in the day-to-day surveillance or
administration of religious activities.” Mergens, 496 U.S. at
253 (citing Tony and Susan Alamo Foundation v. Sec’y of
Labor, 471 U.S. 290, 305-306 (1985)).
  Accordingly, we conclude that permitting FISH to meet
during the PAHS activity period would not have violated the
Establishment Clause.
                          * * * * *
   We hold that the PAHS activity period constitutes
“noninstructional time” under the EAA. PAHS triggered the
creation of a limited open forum and the application of the
EAA when it allowed noncurriculum related groups to meet
before actual classroom instruction began. Moreover, when
PAHS denied the Bible club access to the school’s limited
public forum on the ground that the Club was religious in
nature, it discriminated against the club because of its
religious viewpoint in violation of the Free Speech Clause of
the First Amendment. Because PAHS has not raised a valid
Establishment Clause claim, we do not address the
question whether such a claim could excuse PAHS’s
viewpoint discrimination.
  We reverse the district court’s order dismissing all claims
and remand for determination of damages and attorney’s
fees with a direction that the portion dealing with injunctive
and declaratory relief be vacated under the teachings of
United States v. Munsingwear, 340 U.S. 36, 39 (1950).
  We have considered all contentions presented by the
parties and conclude that no further discussion is
necessary.
                             26


  We will VACATE that portion of the District Court’s
judgment dealing with declaratory and injunctive relief and
REVERSE and REMAND the portion dealing with money
damages and the possibility of attorney’s fees for further
proceedings.

A True Copy:
        Teste:

                  Clerk of the United States Court of Appeals
                              for the Third Circuit
