Donovan v. Punxsutawney Area School Board ( 2003 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Precedential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
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    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