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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
less than sympathetic to John Doe's complaint.1
59
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
they contend occurred at DISD schools and sponsored events.2
72
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.
Lastly, DISD has not established a "limited open forum."4
206
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
into the ceremony . . . ." Id. at 2678 (Souter, J., concurring).5
237
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
of success on the merits of their Establishment Clause claim.7
272
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:
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(1)
The length of time during which the would-be
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intervenor actually knew or reasonably should have known
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of his interest in the case before he petitioned for
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leave to intervene [. . .;]
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(2)
The extent of the prejudice that the existing
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parties to the litigation may suffer as a result of the
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would-be intervenor's failure to apply for intervention
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as soon as he actually knew or reasonably should have
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known of his interest in the case [. . .;]
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(3)
The extent of the prejudice that the would-be
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intervenor may suffer if his petition for leave to
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intervene is denied [. . .; and]
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(4)
The existence of unusual circumstances militating
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either for or against a determination that the
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application is timely.
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See also Kneeland, 806 F.2d at 1289.
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It is not altogether evident, on the record available to us,
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just how languid Rutherford was in pursuit of intervention. While
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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
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preliminary injunction hearing, thus threatening prejudice to the
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Does from the almost certain delay that its entry would have
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occasioned, these considerations are not dispositive under
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Stallworth.
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Of the remaining two factors, there appear to be no "unusual
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circumstances," and thus the only remaining factor is that of
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prejudice to the intervenors should their petition be denied.
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Here, the equities favor the Does. In adopting the Fourth
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Circuit's standard for adequacy of representation, we previously
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have stated that "[w]hen the party seeking intervention has the
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same ultimate objective as a party to the suit, a presumption
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arises that its interests are adequately represented, against which
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the petitioner must demonstrate adversity of interest, collusion,
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or nonfeasance." International Tank Terminals v. M/V Acadia
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Forest, 579 F.2d 964 (5th Cir. 1978) (quoting Virginia v.
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Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976)). See
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also United States v. League of United Latin Am. Citizens, 793 F.2d
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636, 644 (5th Cir. 1986); Bush v. Viterna, 740 F.2d 350, 355-58
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(5th Cir. 1984).
398
In the record developed to date, Rutherford has made no
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substantial showing that the DISD will not adequately represent its
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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...)
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401
Rutherford are seeking the same outcome )) a declaration that the
402
religious practices that the students wish to engage in, and that
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the DISD wishes to sustain, are constitutionally permissible.
404
Because Gibbs requires all four of its factors to be present
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before a party may be entitled to intervention as of right, our
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conclusion that Rutherford has failed to overcome the presumed
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mutuality of the DISD's and its interests not only bolsters the
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district court's finding that the motion was untimely under
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Stallworth, but also suffices to deny intervention of right
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altogether. Accordingly, we conclude that the district court did
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not err in denying intervention at the preliminary injunction stage
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of the proceedings. Because it is foreseeable, however, that the
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interests of the schoolchildren and the DISD yet may diverge (for
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example, at the permanent injunction phase of the case), the denial
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of intervention is hereby modified to be without prejudice to
Rutherford's ability to seek to intervene at some future date.10
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417
In summary, the order granting the preliminary injunction is
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AFFIRMED. The order denying intervention is AFFIRMED as modified.
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In affirming, we emphasize that the issues before us arise in the
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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.
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421
these issues has yet to occur. Accordingly, this opinion should
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not be read to pretermit their final resolution.
20