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)
2

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
 

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

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
 

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

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
5

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
6

104 intervene on behalf of a class of DISD schoolchildren (collec105 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
7

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
8

160 constitutional right not to participate in such

161 activities.
9

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-carved171 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 non177 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
 

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

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

extracurricular.3 201 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
11

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 anti221 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
 

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

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

expression or indoctrination.6 241 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
 

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

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(...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

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
15

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 student304 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 student316 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. 
 

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

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

presents itself here.8 332 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
17

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

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

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

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

350 seek leave to intervene.

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

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

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

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

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

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

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

358 to intervene:

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

360 intervenor actually knew or reasonably should have known

361 of his interest in the case before he petitioned for

362 leave to intervene [. . .;]

363 (2) The extent of the prejudice that the existing

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

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

366 as soon as he actually knew or reasonably should have

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

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

369 intervenor may suffer if his petition for leave to

370 intervene is denied [. . .; and]

371 (4) The existence of unusual circumstances militating

372 either for or against a determination that the

373 application is timely. 

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

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

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

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

9 Of course, the fact that the DISD voluntarily halted prayers at its

schools prior to the issuance of the preliminary injunction does not compel

the conclusion that Rutherford's interests are incompatible with those of the

DISD. It is the mutuality of interests in the litigation that is the proper

(continued...)

18

378 filed their original complaint and only two days before the

379 preliminary injunction hearing, thus threatening prejudice to the

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

381 occasioned, these considerations are not dispositive under

382 Stallworth. 

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

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

385 prejudice to the intervenors should their petition be denied.

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

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

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

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

390 arises that its interests are adequately represented, against which

391 the petitioner must demonstrate adversity of interest, collusion,

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

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

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

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

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

397 (5th Cir. 1984).

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

399 substantial showing that the DISD will not adequately represent its

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

9(...continued)

inquiry, not their divergent views regarding pre-trial strategy or their

respective legal obligations during the pendency of the litigation.

 

10 We decline to address Rutherford's request for permissive

intervention under FED. R. CIV. P. 24(b)(2). Ordinarily, "[r]eversing a denial

of permissive intervention requires a clear abuse of discretion." Kneeland,

806 F.2d at 1289. Indeed, "[t]his circuit has never reversed a denial of

permissive intervention. Such a decision by any federal appellate court `is

so unusual as to be almost unique.'" Id. at 1289-90 (citation omitted). We

note only that as we are proceeding under this exceedingly deferential

standard, it is plain that the requisite abuse is not presented by the facts

of this case.

19

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

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

403 the DISD wishes to sustain, are constitutionally permissible.

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

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

406 conclusion that Rutherford has failed to overcome the presumed

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

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

409 Stallworth, but also suffices to deny intervention of right

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

411 not err in denying intervention at the preliminary injunction stage

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

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

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

415 of intervention is hereby modified to be without prejudice to

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

417 In summary, the order granting the preliminary injunction is

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

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

420 context of a preliminary, not a permanent injunction. The trial of
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421 these issues has yet to occur. Accordingly, this opinion should

422 not be read to pretermit their final resolution.