IN THE UNITED STATES COURT OF APPEALS 1

FOR THE FIFTH CIRCUIT 2

_______________ 3

No. 91-1988 4

_______________ 5

JOHN DOE, et al., 6

Plaintiffs-Appellees, 7

VERSUS 8

DUNCANVILLE INDEPENDENT SCHOOL DISTRICT, et al., 9

Defendants-Appellees. 10

VERSUS 11

KELLY KENDRICK, et al., 12

Appellants. 13

_______________ 14

No. 91-7347 15

_______________ 16

JOHN DOE, et al., 17

Plaintiffs-Appellees, 18

VERSUS 19

DUNCANVILLE INDEPENDENT SCHOOL DISTRICT, et al., 20

Defendants-Appellants. 21

_________________________ 22

Appeals from the United States District Court 23

for the Northern District of Texas 24

_________________________ 25

(June 16, 1993) 262

Before REAVLEY, SMITH, and EMILIO M. GARZA, Circuit Judges. 27

PER CURIAM: 28

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

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

following opinion. The mandate shall issue forthwith. 31

JERRY E. SMITH, Circuit Judge: 32

I. 33

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

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

Junior High School, in the Duncanville Independent School District 36

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

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

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

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

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

participated out of a desire not to create dissension. 42

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

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

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

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

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

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

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

apparently have been conducted in physical edu cation classes at 501 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 DISD for the past seventeen years. 51

After attending a game and seeing his daughter participate in 52

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

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

his daughter that she did not have to join in t h e prayers, 55

whereupon she resolved to cease her participation. 56

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

time the assistant superintendent of schools. Parker was somewhat 58

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

Mr. Doe later contacted Marvin Utecht, who had r eplaced 60

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

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

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

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

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

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

inclination to alter the school's practices. 67

Jane and John Doe subsequently filed a complaint seeking 68

declaratory and injunctive relief against DISD, its superintendent, 69

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

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

they contend occurred at DISD schools and sponsored events. 2 722 (...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 Upon deciding not to participate in the team prayer, Doe was 73

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

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

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

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

The Does contend that the DISD thus fosters a climate in which 785

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

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

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

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

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

little atheist" during one class lecture. 84

According to the DISD, administration members met with several 85

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

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

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

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

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

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

the DISD. 92

II. 93

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

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

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

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

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

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

No. 91-7347. 100

In the now-consolidated F ED

. R. C IV

. P. 24 proceeding, the 101

Rutherford Institute of Texas Foundation, amicus curiae before this 102

court on the appeal of the preliminary injunction, proposes to 1036

intervene on behalf of a class of DISD schoolchildren (collec104

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

free exercise of religion stand directly and adversel y to be 106

affected by the outcome of this lawsuit. 107

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

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

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

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

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

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

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

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

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

intervene. 117

III. 118

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

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

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

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

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

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

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

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

upon a showing of an abuse of discretion. D oran v. Salem Inn

, 422 127

U.S. 922, 931-32 (1975); White v. Carlucci

, 862 F.2d 1209, 1211 1287

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

130

IV. 131

The Does clai m a violation of the First Amendment's 132

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

test enunciated in Lemon v. Kurtzman

, 403 U.S. 602, 612-13 (1971): 134

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

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

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

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

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

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

Establishment Clause. 141

The district court found th at DISD's practices violated all 142

three prongs )) thus presenting a substantial likeliho od of the 143

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

injunctive order: 145

It is therefore ORDERED that Plaintiffs' motion for 146

preliminary injunction is granted. 147

It is FURTHER ORDERED that Defendants are enjoined 148

from permitting employees of [DISD] to lead, encourage, 149

promote, or participate in prayer with or among students 150

dur ing curricular or extracurricular activities, 151

including before, during or after school related sporting 152

events. 153

It is FURTHER ORDERED that, due to the pervasive 154

n ature of past school prayer, Defendants are to advise 155

students of [DISD], in writing, that under the First 156

Amendment of the United States Constitution, prayer and 157

religious activities initiated and promoted by school 158

officials are unconstitutional, and that students have a 1598

constitutional right not to participate in such 160

activities. 1619 V. 162

Applicable Supreme Court precedent compels our conclusion that 163

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

the Does demonstrated a substantial l ikelihood of success on the 165

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

different lines of precedent: a restrictive one of considerable 167

parentage that prohibits prayer in the school classroom or 168

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

in Lee v. Weisman , 112 S. Ct. 2649 (1992); and a recently-carved170

out exception, permitting equal access to sch ool facilities to 171

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

Board of Educ. of Westside Community Sch. v. Mergens

, 496 U.S. 226, 173

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

In Mergens

, the Court interpreted the Equal A ccess Act (the 175

"Act"), 20 U.S.C. §§ 4071-4074, and held that under its non176

discrimination provisions, Congress constitutionally could require 177

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

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

formed and accorded official recognition and access to facilities 180

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

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

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

use of the sc hool newspaper, bulletin boards, and the public 184

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

school's annual Club Fair. Mergens

, id. at 246-47. 186

Although teachers or other school personnel can be present at 1873 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 rel igious meetings, the Equal Access Act permits meetings to be 188

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

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

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

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

parameters of the Establishment Clause. 193

The DISD understandably points to Mergens to support its 194

contention that by allowing students and teachers to engage in 195

spontaneous prayer, it merely is accommodating religi on in a 196

constitutionally permissible manner. For a number of reasons, 197

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

Mergens involved non curriculum-related activities; the crucial 199

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

extra curric ular. 3 Second, even if participation on the school 201

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

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

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

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

. 205

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

Mergens does not reveal whether this constitutes merely a 20711

jurisdictional requirement for th e application of the Act or 208

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

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

to public secondar y schools," M ergens

, id. at 235, and Widmar 211

undeniably premised its constitutional conclusions on the existence 212

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

its policy of accommodating their meetings, the Univers ity has 214

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

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

discriminations and exclusions under applicable constitutional 217

norms." (Footnote omitted.)). 218

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

neutrality considerations underlying Widmar and Mergens 's anti220

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

Center Moriches Union Free Sch. Dist.

, 61 U.S.L.W. 4549, 4552 (U.S. 222

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

presented that students actually perceived district endorsement of 224

religion, that students are mature en ough to distinguish 225

accommodation from impermissible endors ement, and that a proper 226

mission of the school is to teac h religious tolerance ) ) were 227

rejected in Lee

. Nor are DISD's attempts to distinguish the 228

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

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

here as did the school officials in Lee

. Given the "subtle 231

coercive pressures" deeme d dispositive by the Court there, Coach 232

Smith's invol vement, too, no doubt "will be perceived by the 2335 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 students as inducing a participation they might otherwise reject." 234

Lee

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

Lee

, "[o]ne may fairly say

. . . that the government brought prayer 236

into the ceremony

. . . ." I d

. at 2678 (Souter, J., concurring). 5 237

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

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

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

expression or indoctrination. 6 Nothing the DISD has presented 241

persuades us that the instant case materially d iffers from this 242

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

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

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

their spontaneous religious expression as a necessary accommodation 246

of religion, while understandable, cannot withstand analysis. 247

Acceptance of DISD's argument would produce an un wieldy result 248

foreclosed by precedent; in Lee

, the Court affirmed th at "[t]he 249

p rinciple that government may accommodate the free exercise of 250

religion does not supersede the fundamental limitations imposed by 2517 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 the Establishment Clause." 112 S. Ct. at 2655. 252

Logically extended, the DISD's reaso ning implies that the 253

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

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

correctly cites Tinker v. Des Moines ISD

, 393 U.S. 503, 506 (1969), 256

and its circuit court progeny as su pport for the scope of its 257

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

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

notion that these may trump schoolchildren's Establishment Clause 260

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

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

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

Rabbi to deliver an invocation and benediction to open graduation 264

ceremonies. S ee, e.g.

, K aren B. v. Treen

, 653 F.2d 897 (5th Cir. 265

Unit A Aug. 1981), aff'd

, 455 U.S. 913 (1982) (striking down 266

statute authorizing voluntary student or teacher -initiated prayer 267

at start of school day). 268

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

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

determining that the Does had demonstrated a substantial likelihood 271

of success on the merits of their Establishment Clause claim. 7 2727 (...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 Our decision on the remaining injunction fa ctors ) ) whether 273

there is a substantial threat that the movant wil l suffer 274

irreparable in jury, whether the threatened injury to the movant 275

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

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

follows from the initial determination that t he Does likely will 278

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

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

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

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

see no abuse of discretion in its determinations. 283

The DISD's voluntary ce ssation of its allegedly violative 284

religious practices does not preclu de a finding of irreparable 285

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

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

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

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

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

prior precedents, in which we have stated that 291

mere voluntary cessation of misconduct whe n a suit is 292

filed does not necessarily render a case moot or remove 293

the necessary justiciability. The crucial test, in an 29415

action involving a request for injunctive or declaratory 295

relief, where defendant has voluntarily ceased his 296

allegedly illegal conduct, is whether it can be said with 297

assurance that there is no reasonable expectation that 298

the wrong will be repeated. 299

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

Cir. 1977) (citations omitted), cert. denied

, 439 U.S. 1089 (1979). 301

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

order is too broad, inasmuch as it purportedly allows student303

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

participation, supervision, or under circumstances suggesting 305

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

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

of Mergens

, wherein the Court permitted school employ ees and 308

administrators to supervise student-initiated prayer in a custodial 309

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

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

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

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

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

infringe upon the custodial supervision of genuinely s t udent315

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

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

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

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

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

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

sponsorship of prayer or other religious activities. 3228 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.

16 323

VI. 324

We next address whether the district court correctly denied 325

inter vention under F E D

. R. C IV

. P. 24 to Rutherford as the 326

representative of the proposed intervenor c lass of DISD 327

schoolchildren. Rule 24 provides for both permissive intervention, 328

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

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

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

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

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

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

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

proof of four factors: 336

(1) the application must be timely; 337

(2) the applicant must have an interest in the property 338

or transaction that is the subject of the action; 339

(3) disposition of the matter must impair or impede the 340

applicant's ability to protect that interest; and 341

(4) the applicant's interest must no t be adequately 342

represented by the parties to the suit. 343

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

318, 320 (5th Cir. 1986). Rutherford first claims that its motion 34517

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

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

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

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

seek leave to intervene. 350

Alone among the four Gibbs fact ors, we review the district 351

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

of discret ion. K neeland v. National Collegiate Athletic Ass'n

, 353

806 F.2d 1285, 1289 (5th Cir.), cert. denied

, 484 U.S. 817 (1987). 354

In Stallworth v. Monsanto Co.

, 558 F.2d 257, 264-66 (5th Cir. 355

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

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

to intervene: 358

(1) The length of time during which the would-be 359

intervenor actually knew or reasonably should have known 360

of his interest in the case before he petitioned for 361

leave to intervene [. . .;] 362

(2) The extent of the preju dice that the existing 363

parties to the litigation may suffer as a result of the 364

would-be intervenor's failure to apply for intervention 365

as soon as he actually knew or reasonably sho uld have 366

known of his interest in the case [. . .;] 367

(3) The exte nt of the prejudice that the would-be 368

intervenor may suffer if his peti tion for leave to 369

intervene is denied [. . .; and] 370

(4) The existence of unusual circumstances militating 371

either for or against a determi nation that the 372

application is timely. 373

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

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

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

its first petition was filed nearly four months after the Does 3779 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 filed their original complaint and only two days before the 378

preliminary injunction hearing, thus threatening prejudice to the 379

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

occasioned, these considerations are not dispositive under 381

Stallworth

. 382

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

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

prejudice to the intervenors should their petition be denied. 385

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

Circuit's standard for adequacy of representation, we previou sly 387

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

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

arises that its interests are adequately represented, against which 390

the petitioner must demonstrate adversity of interest, collusion, 391

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

Forest

, 579 F.2d 964 (5t h Cir. 1978) (quoting V irginia v. 393

Westinghouse Elec. Corp.

, 542 F.2d 214, 216 (4th Cir. 1976)). S ee 394

also United States v. League of United Latin Am. Citizens

, 793 F.2d 395

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

(5th Cir. 1984). 397

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

substantial showing that the DISD will not adequately represent its 399

i nterests in the litigation. 9 By all indications, the DISD and 4009 (...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 F ED. R. C IV. 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 Rutherford are seeking the same outcome )) a declaration that the 401

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

the DISD wishes to sustain, are constitutionally permissible. 403

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

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

conclusion that R utherford has failed to overcome the presumed 406

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

district court's finding that the m otion was untimely under 408

Stallworth

, but a lso s uffices to deny intervention of right 409

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

not err in denying intervention at the preliminary injunction stage 411

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

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

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

of intervention is h ereby modified to be without prejudice to 415

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

In summary, the order granting the preliminary injunction is 417

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

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

context of a preliminary, not a permanent injunction. The trial of 42020

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

not be read to pretermit their final resolution. 422