1         IN THE UNITED STATES COURT OF APPEALS

2                 FOR THE FIFTH CIRCUIT


3                    _______________

4                      No. 91-1988
5                    _______________


6                   JOHN DOE, et al.,

7                                           Plaintiffs-Appellees,


8                         VERSUS

9    DUNCANVILLE INDEPENDENT SCHOOL DISTRICT, et al.,

10                                          Defendants-Appellees.


11                        VERSUS

12               KELLY KENDRICK, et al.,

13                                          Appellants.

14                   _______________

15                     No. 91-7347
16                   _______________


17                  JOHN DOE, et al.,

18                                          Plaintiffs-Appellees,


19                        VERSUS

20   DUNCANVILLE INDEPENDENT SCHOOL DISTRICT, et al.,

21                                          Defendants-Appellants.



22              _________________________

23    Appeals from the United States District Court
24          for the Northern District of Texas
25               _________________________
26                    (June 16, 1993)
27   Before REAVLEY, SMITH, and EMILIO M. GARZA, Circuit Judges.

28   PER CURIAM:

29          We withdraw our opinion issued March 29, 1993, and reported at

30   986 F.2d 953 (5th Cir. 1993), and substitute in its place the

31   following opinion.       The mandate shall issue forthwith.




32   JERRY E. SMITH, Circuit Judge:

33                                          I.

34          Jane Doe was twelve years old when her family moved to

35   Duncanville, Texas, and she started the seventh grade at Reed

36   Junior High School, in the Duncanville Independent School District

37   ("DISD").   Doe tried out for and made the girls' basketball team at

38   her new school and shortly thereafter learned that Coach Smith, the

39   girls' basketball coach, regularly began or ended practice with a

40   team   recitation   of    the    Lord's       Prayer.   Even   though   she   was

41   uncomfortable with these prayers and opposed to the practice, Doe

42   participated out of a desire not to create dissension.

43          At Doe's first basketball game, the Lord's Prayer was recited

44   in the center of the court at the end of the game, the girls on

45   their hands and knees with the coach standing over them, heads

46   bowed.     Over the following weeks, prayers were said prior to

47   leaving the school for away games as well as before exiting the bus

48   upon the team's return.         These prayers usually were started either

49   by the coaches' signal or at their verbal request.                      Prayers

50   apparently have been conducted in physical education classes at


                                               2
51   DISD for the past seventeen years.

52         After attending a game and seeing his daughter participate in

53   the prayer, John Doe, Jane's father, asked her how she felt about

54   participating.       When told that she preferred not to, John Doe told

55   his daughter that she did not have to join in the prayers,

56   whereupon she resolved to cease her participation.

57         Following this incident, John Doe contacted Ed Parker, at that

58   time the assistant superintendent of schools.            Parker was somewhat

59   less than sympathetic to John Doe's complaint.1

60         Mr. Doe later contacted Marvin Utecht, who had replaced

61   Mr.   Parker,     regarding    prayer   at   school-time     pep   rallies   and

62   following basketball games. Utecht took action to halt the prayers

63   at pep rallies but insisted there was nothing he could do regarding

64   the post-game prayers. Mr. Doe then appeared before the DISD Board

65   of Trustees (the "school board") to present his case, at which

66   appearance, according to Mr. Doe, the school board showed no

67   inclination to alter the school's practices.

68         Jane and John Doe subsequently filed a complaint seeking

69   declaratory and injunctive relief against DISD, its superintendent,

70   and the current and future members of the school board, alleging a

71   number of objectionable religious acts, practices, and customs that

72   they contend occurred at DISD schools and sponsored events.2


           1
             Parker stated that "unless [Doe] had grandparents buried in the
     Duncanville Cemetery he had no right to tell [Parker] how to run his schools."
           2
               Among these acts and customs were the following:
           1.    Girls basketball teams from the seventh through twelfth grades (with
                                                                    (continued...)

                                             3
73        Upon deciding not to participate in the team prayer, Doe was

74   required by Coach Smith, on one occasion, to stand outside the

75   prayer circle.    Moreover, at away games, at which the girls are not

76   permitted to return to the locker room except as a group, Doe

77   regularly had to stand apart while the coaches and students prayed.

78        The Does contend that the DISD thus fosters a climate in which



          2
           (...continued)
     the exception of the seventh and eighth grade at one school) recited the
     Lord's Prayer before (in the locker room) and after (at center court) each
     game (but not, apparently, during games, although there may be an exception
     for last-second, buzzer-beater shots). They also routinely formed a circle
     and recite the Prayer before practices. The recital of a prayer at basketball
     games was a tradition at DISD for over 20 years.
           2. The Lord's Prayer was recited during regularly scheduled physical
     education classes for members of the teams.
          3.   Prayers were said at pep rallies.
           4. While traveling from away games, the teams recited the Lord's Prayer
     prior to leaving the school bus.
           5. At awards ceremonies honoring the teams, prayers were recited, and
     pamphlets containing religious songs were prepared and distributed by the
     coaches and/or other school personnel.
           6. A prayer was spoken prior to all football games conducted at fields
     owned and operated by DISD.
           7. At other sporting events, ceremonies, and major events conducted
     under the direction and/or supervision of the DISD and its personnel, prayers
     routinely were included in the program and recited as an integral part of the
     event.
           8. Prayers began all regular school board meetings, with the exception
     of special school board meetings. Prayers were said prior to each football
     game, graduation ceremony, baccalaureate, employee banquet, new teacher
     orientation, the end of the year banquet, and PTA meetings.
           9. Each school in the district usually staged a Christmas program during
     its December PTA meeting. During these meetings, traditional Christmas hymns
     were sung, and the meetings began with a prayer.
           10. Gideon Bibles were made available to the intermediate school
     students, and announcements were made that the Bibles could be picked up in
     the front foyer of the schools.
           11. Doe's history teacher taught the Biblical version of Creation; in
     choir class, Christian songs routinely were sung, and the theme song for the
     choir )) required to be sung at all performances )) was a religious song.
     DISD admitted the above acts and practices, and that they were conducted on
     DISD property as an integral part of DISD's curricular or extra-curricular
     programs while students were under the active supervision and surveillance of
     DISD personnel.

                                           4
79    Jane Doe is singled out and subjected to criticism on the basis of

80    her religious beliefs.     The record shows that her fellow students

81    asked, "Aren't you a Christian?" and that one spectator stood up

82    after a game and yelled, "Well, why isn't she praying?                   Isn't she

83    a Christian?"     Additionally, Doe's history teacher called her "a

84    little atheist" during one class lecture.

85          According to the DISD, administration members met with several

86    of the coaches subsequent to the filing of this suit and told the

87    coaches that they should permit student-initiated prayer, but that

88    prayers were not to be allowed during classroom time and that

89    faculty should neither initiate nor participate in prayer.                  By the

90    time of the preliminary injunction hearing, all class-time prayers

91    had stopped.     Doe had no complaints during her ninth-grade year at

92    the DISD.



93                                        II.

94          On August 15, 1991, the Does filed an application for a

95    temporary restraining order ("TRO") and preliminary injunction.

96    The   district   court,   on   August       20,   1991,   denied   the    TRO   but

97    scheduled a preliminary injunction hearing for September 16, 1991.

98    Following a two-day trial, the court on November 18, 1991, entered

99    a preliminary injunction.         DISD filed a notice of appeal as

100   No. 91-7347.

101         In the now-consolidated FED. R. CIV. P. 24 proceeding, the

102   Rutherford Institute of Texas Foundation, amicus curiae before this

103   court on the appeal of the preliminary injunction, proposes to


                                              5
104   intervene on behalf of a class of DISD schoolchildren (collec-

105   tively, "Rutherford") who claim their constitutional rights to the

106   free exercise of religion stand directly and adversely to be

107   affected by the outcome of this lawsuit.

108         On September 12, 1991, and (according to Rutherford) two days

109   after they first learned that the Does had filed an application for

110   a TRO, the putative intervenors moved to intervene and filed a

111   third-party complaint.        The court denied the motion to intervene

112   the   next   day   on   the   ground   that   the    suit   did   not   affect

113   Rutherford's rights and the motion to intervene was untimely.

114   Rutherford filed a motion to reconsider on September 27, 1991,

115   which the court denied on October 7.                Rutherford appeals, as

116   No. 91-1988, the September 13 and October 7 orders denying leave to

117   intervene.



118                                       III.

119         To obtain a preliminary injunction, a movant has the burden of

120   proving four elements: a substantial likelihood of success on the

121   merits; a substantial threat that he will suffer irreparable injury

122   if the injunction is not issued; that the threatened injury to him

123   outweighs any damage the injunction might cause to the non-movant;

124   and that the injunction will not disserve the public interest.

125   Apple Barrel Prods. v. Beard, 730 F.2d 384, 386 (5th Cir. 1984).

126   We will reverse the district court's weighing of these factors only

127   upon a showing of an abuse of discretion.           Doran v. Salem Inn, 422

128   U.S. 922, 931-32 (1975); White v. Carlucci, 862 F.2d 1209, 1211


                                             6
129   (5th Cir. 1989) (quoting Apple Barrel, 730 F.2d at 386).

130



131                                        IV.

132        The     Does   claim   a   violation   of    the    First    Amendment's

133   Establishment Clause.       Such claims are guided by the three-part

134   test enunciated in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971):

135   "First, the statute [or practice] must have a secular legislative

136   purpose; second, its principal or primary effect must be one that

137   neither advances nor inhibits religion; finally, the statute must

138   not foster `an excessive government entanglement with religion.'"

139   (Citations    omitted.)     Absent    any   one   of    these    factors,   the

140   challenged statute or practice must be stricken as violative of the

141   Establishment Clause.

142        The district court found that DISD's practices violated all

143   three prongs )) thus presenting a substantial likelihood of the

144   Does' succeeding on the merits )) and accordingly entered its

145   injunctive order:

146             It is therefore ORDERED that Plaintiffs' motion for
147        preliminary injunction is granted.

148             It is FURTHER ORDERED that Defendants are enjoined
149        from permitting employees of [DISD] to lead, encourage,
150        promote, or participate in prayer with or among students
151        during   curricular   or   extracurricular    activities,
152        including before, during or after school related sporting
153        events.

154             It is FURTHER ORDERED that, due to the pervasive
155        nature of past school prayer, Defendants are to advise
156        students of [DISD], in writing, that under the First
157        Amendment of the United States Constitution, prayer and
158        religious activities initiated and promoted by school
159        officials are unconstitutional, and that students have a

                                            7
160   constitutional   right   not       to   participate   in   such
161   activities.




                                     8
162                                      V.

163        Applicable Supreme Court precedent compels our conclusion that

164   the district court did not abuse its discretion in determining that

165   the Does demonstrated a substantial likelihood of success on the

166   constitutional merits of their claim.         The parties point us to two

167   different lines of precedent: a restrictive one of considerable

168   parentage    that   prohibits   prayer   in   the   school   classroom   or

169   environs, the most recent statement of which is the Court's opinion

170   in Lee v. Weisman, 112 S. Ct. 2649 (1992); and a recently-carved-

171   out exception, permitting equal access to school facilities to

172   student-run religious groups and student-initiated prayer, see

173   Board of Educ. of Westside Community Sch. v. Mergens, 496 U.S. 226,

174   243-53 (1990); Widmar v. Vincent, 454 U.S. 263, 271-75 (1981).

175        In Mergens, the Court interpreted the Equal Access Act (the

176   "Act"), 20 U.S.C. §§ 4071-4074, and held that under its non-

177   discrimination provisions, Congress constitutionally could require

178   a school receiving federal funds, which had established a "limited

179   open forum," to permit a student-initiated prayer group to be

180   formed and accorded official recognition and access to facilities

181   on an equal basis with other "noncurriculum related student groups"

182   (e.g., Peer Advocates, Subsurfers, and the Chess Club).          496 U.S.

183   at 247-53.    The access accompanying official recognition included

184   use of the school newspaper, bulletin boards, and the public

185   address system to announce meeting times and promote turnout to the

186   school's annual Club Fair.      Mergens, id. at 246-47.

187        Although teachers or other school personnel can be present at


                                          9
188   religious meetings, the Equal Access Act permits meetings to be

189   held only during "non-instructional" time and school personnel to

190   be present solely in a "custodial" capacity )) "merely to ensure

191   order and good behavior."        Id. at 252-53.     While the Act does not

192   apply to the instant case, Mergens nonetheless informs as to the

193   parameters of the Establishment Clause.

194         The DISD understandably points to Mergens to support its

195   contention that by allowing students and teachers to engage in

196   spontaneous prayer, it merely is accommodating religion in a

197   constitutionally permissible manner.            For a number of reasons,

198   however, Mergens is not implicated by the facts before us.             First,

199   Mergens involved noncurriculum-related activities; the crucial

200   activity here, playing on a school-sponsored basketball team, is

201   extracurricular.3       Second, even if participation on the school

202   basketball team were non-curricular, the prayer here hardly could

203   be considered student-initiated.          Coach Smith chose the prayer and

204   where and when it was to be said and led the team in reciting it.

205   This is not the minimal, "custodial" oversight allowed by Mergens.

206         Lastly, DISD has not established a "limited open forum."4

207   Mergens   does    not   reveal    whether    this   constitutes    merely       a



            3
              The Mergens Court's test for noncurriculum activities includes
      consideration of whether participation results in academic credit. 496 U.S.
      at 239-40. At one point in its opinion, moreover, the Court seems to suggest
      that swimming, as part of the physical education requirement, would be
      curriculum-related. Id. at 245. We conclude that basketball almost certainly
      would not be categorized as noncurricular under Mergens.
            4
              According to the Act, "[a] public secondary school has a limited open
      forum whenever such school grants an offering to or opportunity for one or
      more noncurriculum related student groups to meet on school premises during
      noninstructional time." 20 U.S.C. § 4071(b) (1990).

                                           10
208   jurisdictional requirement for the application of the Act or

209   instead, whether it partakes of a constitutional character.         But

210   the Act, according to the Court, "extended the reasoning of Widmar

211   to public secondary schools," Mergens, id. at 235, and Widmar

212   undeniably premised its constitutional conclusions on the existence

213   of a limited public forum.    See Widmar, 454 U.S. at 267 ("Through

214   its policy of accommodating their meetings, the University has

215   created a forum generally open for use by student groups.        Having

216   done so, the University has assumed an obligation to justify its

217   discriminations and exclusions under applicable constitutional

218   norms."   (Footnote omitted.)).

219        Absent the existence of a limited public forum, therefore, the

220   neutrality considerations underlying Widmar and Mergens's anti-

221   discrimination approach are not implicated.      Cf. Lamb's Chapel v.

222   Center Moriches Union Free Sch. Dist., 61 U.S.L.W. 4549, 4552 (U.S.

223   June 7, 1993).     The DISD's arguments )) that no evidence was

224   presented that students actually perceived district endorsement of

225   religion,   that   students   are    mature   enough   to   distinguish

226   accommodation from impermissible endorsement, and that a proper

227   mission of the school is to teach religious tolerance )) were

228   rejected in Lee.     Nor   are DISD's attempts to distinguish the

229   graduation setting at issue in Lee at all persuasive. Coach Smith,

230   a DISD employee, just as surely chose and "composed" the prayer

231   here as did the school officials in Lee.           Given the "subtle

232   coercive pressures" deemed dispositive by the Court there, Coach

233   Smith's involvement, too, no doubt "will be perceived by the


                                          11
234   students as inducing a participation they might otherwise reject."

235   Lee, 112 S. Ct. at 2657.      Just as at the Rhode Island graduation in

236   Lee, "[o]ne may fairly say . . . that the government brought prayer

237   into the ceremony . . . ."       Id. at 2678 (Souter, J., concurring).5

238         Lee is merely the most recent in a long line of cases carving

239   out of the Establishment Clause what essentially amounts to a per

240   se rule prohibiting public-school-related or -initiated religious

241   expression or indoctrination.6         Nothing the DISD has presented

242   persuades us that the instant case materially differs from this

243   long-established line of cases.           The DISD's assertion of its

244   employees' First Amendment rights of speech, association, and free

245   exercise, and its attempt to portray its refusal to interfere with

246   their spontaneous religious expression as a necessary accommodation

247   of   religion,   while   understandable,     cannot   withstand    analysis.

248   Acceptance of DISD's argument would produce an unwieldy result

249   foreclosed by precedent; in Lee, the Court affirmed that "[t]he

250   principle that government may accommodate the free exercise of

251   religion does not supersede the fundamental limitations imposed by


            5
              The DISD objects to the district court's citation to Lubbock Civil
      Liberties Union v. Lubbock ISD, 669 F.2d 1038 (5th Cir. 1982), cert. denied,
      459 U.S. 1155 (1983), and Brandon v. Board of Educ., 635 F.2d 971 (2d Cir.
      1980), cert. denied, 454 U.S. 1123 (1981). Although the enactment of the Act
      abrogated the holding of these two cases, see Mergens, 496 U.S. at 239, a
      close reading of the district court's opinion reveals that the reference to
      these two cases primarily was for rhetorical purposes. We are persuaded that
      the district court's application of Lemon was not infected by any undue
      reliance upon the abrogated cases.
            6
              See, e.g., Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987) (striking
      down act requiring equal time for "creation-science"); Wallace v. Jaffree, 472
      U.S. 38, 60, n.51 (1985) (act requiring one minute period for meditation);
      Stone v. Graham, 449 U.S. 39, 42 (1980) (act requiring posting of copy of Ten
      Commandments on classroom wall); Abington Sch. Dist. v. Schempp, 374 U.S. 203,
      252-53 (1963) (Brennan, J., concurring) (act requiring daily Bible readings at
      start of school day); Engel v. Vitale, 370 U.S. 421, 430 (1962) (act requiring
      state-composed prayer to be recited at beginning of every school day).

                                           12
252   the Establishment Clause."        112 S. Ct. at 2655.

253          Logically extended, the DISD's reasoning implies that the

254   Court would have decided Lee differently had a teacher, rather than

255   a Rabbi, delivered the prayer.         We cannot agree.     While the DISD

256   correctly cites Tinker v. Des Moines ISD, 393 U.S. 503, 506 (1969),

257   and its circuit court progeny as support for the scope of its

258   employees' free exercise and free speech rights, even the most

259   cursory reading of the Court's school prayer cases belies any

260   notion that these may trump schoolchildren's Establishment Clause

261   rights.      A   teacher    has   no    free   exercise   rights    to   lead

262   schoolchildren in prayer in the classroom, for example, or to hang

263   the Ten Commandments on the classroom wall, or even to invite a

264   Rabbi to deliver an invocation and benediction to open graduation

265   ceremonies. See, e.g., Karen B. v. Treen, 653 F.2d 897 (5th Cir.

266   Unit A Aug. 1981), aff'd, 455 U.S. 913 (1982) (striking down

267   statute authorizing voluntary student or teacher-initiated prayer

268   at start of school day).

269        We have no choice but to follow the Supreme Court's dictates

270   in this regard.    The district court did not abuse its discretion in

271   determining that the Does had demonstrated a substantial likelihood

272   of success on the merits of their Establishment Clause claim.7

            7
              We have eschewed the tripartite Lemon analysis in favor of a more
      case-bound approach because we believe that a fact-sensitive application of
      existing precedents is more manageable and rewarding than an attempt to
      reconcile the Supreme Court's confusing and confused Establishment Clause
      jurisprudence. See, e.g., Committee for Pub. Educ. & Religious Liberty v.
      Reagan, 444 U.S. 646, 662 (1979) (Establishment Clause cases "sacrifice[]
      clarity and predictability for flexibility"); Edwards v. Aguillard, 482 U.S.
      at 639 (Scalia, J., dissenting) (criticizing the Court's "embarrassing
      Establishment Clause jurisprudence"). While ordinarily "it is neither our
      object nor our place to opine whether the Court's Establishment Clause
                                                                   (continued...)

                                             13
273        Our decision on the remaining injunction factors )) whether

274   there    is   a   substantial   threat    that   the   movant   will   suffer

275   irreparable injury, whether the threatened injury to the movant

276   outweighs any damage the injunction might cause to the non-movant,

277   and whether the injunction will serve the public interest ))

278   follows from the initial determination that the Does likely will

279   succeed at trial.        Assuming that the Does' Establishment Clause

280   rights have been infringed, the threat of irreparable injury to the

281   Does and to the public interest that the clause purports to serve

282   are adequately demonstrated.       The district court so found, and we

283   see no abuse of discretion in its determinations.

284        The DISD's voluntary cessation of its allegedly violative

285   religious practices does not preclude a finding of irreparable

286   injury.    The district court, which was closer to the facts of this

287   case, stated that "[t]he evidence leads the court to believe that

288   there is a substantial likelihood that the alleged conduct would be

289   reinstituted if the court refused to grant the relief requested."

290   The district court's findings bring the instant case within our

291   prior precedents, in which we have stated that

292        mere voluntary cessation of misconduct when a suit is
293        filed does not necessarily render a case moot or remove
294        the necessary justiciability. The crucial test, in an

           7
              (...continued)
      jurisprudence is good, fair, or useful," Jones v. Clear Creek ISD, 977 F.2d
      963, 966 (5th Cir. 1992), cert. denied, 61 U.S.L.W. 3819 (U.S. June 7, 1993),
      we note that recent indications suggest that the Court agrees with our
      assessment of Lemon, essentially ignoring it in Lee in favor of the school
      prayer cases. See Lee, 112 S. Ct. at 2655, 2658; id. at 2685 (Scalia, J.,
      dissenting) ("The Court today demonstrates the irrelevance of Lemon by
      essentially ignoring it, and the interment of that case may be the one happy
      byproduct of the Court's otherwise lamentable decision." (Citations
      omitted.)). In Lamb's Chapel, however, the Court most recently has declared
      that Lemon "has not been overruled." 61 U.S.L.W. at 4552 n.7.

                                           14
295        action involving a request for injunctive or declaratory
296        relief, where defendant has voluntarily ceased his
297        allegedly illegal conduct, is whether it can be said with
298        assurance that there is no reasonable expectation that
299        the wrong will be repeated.

300   Meltzer v. Board of Pub. Instruction, 548 F.2d 559, 566 n.10 (5th

301   Cir. 1977) (citations omitted), cert. denied, 439 U.S. 1089 (1979).

302        Lastly, the DISD charges that the district court's injunction

303   order is too broad, inasmuch as it purportedly allows student-

304   initiated prayer only "provided such prayer is not done with school

305   participation,   supervision,   or    under    circumstances    suggesting

306   school participation or supervision."         Were we to accept this as

307   the import of the district court's order, it might well fall afoul

308   of Mergens, wherein the Court permitted school employees and

309   administrators to supervise student-initiated prayer in a custodial

310   capacity.    See Mergens, 496 U.S. at 252-53.

311        The allegedly offending passage in the court's order appears

312   prior to the text of the injunction.      We do not rest our decision

313   not to disturb the order on this ground, however, as we do not

314   believe that the order, when read as a whole, reflects an intent to

315   infringe upon the custodial supervision of genuinely student-

316   initiated,    noncurriculum-related    religious     groups    ))   a   fact

317   situation very different from that which the district court's order

318   was designed to address.      Accordingly, we construe the order as

319   permitting    Mergens-like,   custodial       supervision;    the   court's

320   introductory language regarding "supervision," given the context of

321   this case, more appropriately is read as prohibiting any school

322   sponsorship of prayer or other religious activities.


                                        15
323

324                                           VI.

325        We next address whether the district court correctly denied

326   intervention      under   FED. R. CIV. P. 24            to   Rutherford    as    the

327   representative       of   the      proposed      intervenor    class      of    DISD

328   schoolchildren. Rule 24 provides for both permissive intervention,

329   see rule 24(b), and intervention as a matter of right, see rule

330   24(a).      Of the latter category, it is only the non-statutory

331   variety of intervention of right, set out in rule 24(a)(2), that

332   presents    itself    here.8       We   review    the   district   court's      rule

333   24(a)(2) determinations under a de novo standard.                  Ceres Gulf v.

334   Cooper, 957 F.2d 1199, 1202 (5th Cir. 1992).

335        Intervention under Rule 24(a)(2) is to be accorded only upon

336   proof of four factors:

337        (1) the application must be timely;

338        (2) the applicant must have an interest in the property
339        or transaction that is the subject of the action;

340        (3) disposition of the matter must impair or impede the
341        applicant's ability to protect that interest; and

342        (4) the applicant's interest must not be adequately
343        represented by the parties to the suit.

344   Association of Professional Flight Attendants v. Gibbs, 804 F.2d

345   318, 320 (5th Cir. 1986).          Rutherford first claims that its motion


           8
               Rule 24(a)(2) provides,
            (a) Intervention of Right. Upon timely application anyone shall be
      permitted to intervene in an action . . . (2) when the applicant claims an
      interest relating to the property or transaction which is the subject of the
      action and the applicant is so situated that the disposition of the action may
      as a practical matter impair or impede the applicant's ability to protect that
      interest, unless the applicant's interest is adequately represented by
      existing parties.

                                               16
346   was timely.     Doe disagrees, and the district court alternatively

347   denied intervention on this ground, citing the fact that Rutherford

348   moved   to   intervene    just   two   days   before    the    hearing    on    the

349   preliminary injunction, although it had had almost four months to

350   seek leave to intervene.

351        Alone among the four Gibbs factors, we review the district

352   court's determination of the timeliness of the petition for abuse

353   of discretion.     Kneeland v. National Collegiate Athletic Ass'n,

354   806 F.2d 1285, 1289 (5th Cir.), cert. denied, 484 U.S. 817 (1987).

355   In Stallworth v. Monsanto Co., 558 F.2d 257, 264-66 (5th Cir.

356   1977), we     distilled   from   prior      precedent   four    factors    to    be

357   considered before passing on the timeliness of a petition for leave

358   to intervene:

359        (1) The length of time during which the would-be
360        intervenor actually knew or reasonably should have known
361        of his interest in the case before he petitioned for
362        leave to intervene [. . .;]

363        (2) The extent of the prejudice that the existing
364        parties to the litigation may suffer as a result of the
365        would-be intervenor's failure to apply for intervention
366        as soon as he actually knew or reasonably should have
367        known of his interest in the case [. . .;]

368        (3) The extent of the prejudice that the would-be
369        intervenor may suffer if his petition for leave to
370        intervene is denied [. . .; and]

371        (4) The existence of unusual circumstances militating
372        either for or against a determination that the
373        application is timely.

374   See also Kneeland, 806 F.2d at 1289.

375        It is not altogether evident, on the record available to us,

376   just how languid Rutherford was in pursuit of intervention.                While

377   its first petition was filed nearly four months after the Does

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378   filed their      original       complaint      and   only   two   days    before    the

379   preliminary injunction hearing, thus threatening prejudice to the

380   Does from the almost certain delay that its entry would have

381   occasioned,      these    considerations         are     not   dispositive       under

382   Stallworth.

383        Of the remaining two factors, there appear to be no "unusual

384   circumstances," and thus the only remaining factor is that of

385   prejudice to the intervenors should their petition be denied.

386   Here,    the   equities    favor    the     Does.      In    adopting     the   Fourth

387   Circuit's standard for adequacy of representation, we previously

388   have stated that "[w]hen the party seeking intervention has the

389   same ultimate objective as a party to the suit, a presumption

390   arises that its interests are adequately represented, against which

391   the petitioner must demonstrate adversity of interest, collusion,

392   or nonfeasance."          International Tank Terminals v. M/V Acadia

393   Forest,    579   F.2d     964    (5th   Cir.     1978)      (quoting     Virginia    v.

394   Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976)).                       See

395   also United States v. League of United Latin Am. Citizens, 793 F.2d

396   636, 644 (5th Cir. 1986); Bush v. Viterna, 740 F.2d 350, 355-58

397   (5th Cir. 1984).

398        In the record developed to date, Rutherford has made no

399   substantial showing that the DISD will not adequately represent its

400   interests in the litigation.9             By all indications, the DISD and


           9
              Of course, the fact that the DISD voluntarily halted prayers at its
      schools prior to the issuance of the preliminary injunction does not compel
      the conclusion that Rutherford's interests are incompatible with those of the
      DISD. It is the mutuality of interests in the litigation that is the proper
                                                                          (continued...)

                                                18
401   Rutherford are seeking the same outcome )) a declaration that the

402   religious practices that the students wish to engage in, and that

403   the DISD wishes to sustain, are constitutionally permissible.

404         Because Gibbs requires all four of its factors to be present

405   before a party may be entitled to intervention as of right, our

406   conclusion that Rutherford has failed to overcome the presumed

407   mutuality of the DISD's and its interests not only bolsters the

408   district    court's   finding    that    the   motion   was   untimely    under

409   Stallworth,    but    also   suffices    to    deny   intervention   of   right

410   altogether.    Accordingly, we conclude that the district court did

411   not err in denying intervention at the preliminary injunction stage

412   of the proceedings.      Because it is foreseeable, however, that the

413   interests of the schoolchildren and the DISD yet may diverge (for

414   example, at the permanent injunction phase of the case), the denial

415   of intervention is hereby modified to be without prejudice to

416   Rutherford's ability to seek to intervene at some future date.10

417         In summary, the order granting the preliminary injunction is

418   AFFIRMED.    The order denying intervention is AFFIRMED as modified.

419   In affirming, we emphasize that the issues before us arise in the

420   context of a preliminary, not a permanent injunction.            The trial of

            9
             (...continued)
      inquiry, not their divergent views regarding pre-trial strategy or their
      respective legal obligations during the pendency of the litigation.
            10
              We decline to address Rutherford's request for permissive
      intervention under FED. R. CIV. P. 24(b)(2). Ordinarily, "[r]eversing a denial
      of permissive intervention requires a clear abuse of discretion." Kneeland,
      806 F.2d at 1289. Indeed, "[t]his circuit has never reversed a denial of
      permissive intervention. Such a decision by any federal appellate court `is
      so unusual as to be almost unique.'" Id. at 1289-90 (citation omitted). We
      note only that as we are proceeding under this exceedingly deferential
      standard, it is plain that the requisite abuse is not presented by the facts
      of this case.

                                              19
421   these issues has yet to occur.    Accordingly, this opinion should

422   not be read to pretermit their final resolution.




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