JUSTICE DEVINE delivered the opinion of the Court.
The sole issue in this interlocutory appeal is whether the defendant's voluntary cessation of challenged conduct rendered the plaintiffs' claims for prospective relief moot. The court of appeals held that it did. 482 S.W.3d 120, 127-34 (Tex.App.-Beaumont 2014) (mem.op.). Because the challenged conduct might reasonably be expected to recur, we reverse and remand.
Middle school and high school cheerleaders, through their parents, sued Kountze Independent School District after the District prohibited them from displaying banners containing religious signs or messages at school-sponsored events. The District responded by filing a plea to the jurisdiction based on governmental immunity and lack of standing. The District later supplemented that plea to assert mootness in light of its subsequent adoption of Resolution and Order No. 3, which provides that the District is "not required to prohibit messages on school banners... that display fleeting expressions of community sentiment solely because the source or origin of such message is religious," but "retains the right to restrict the content of school banners."
The trial court denied the District's plea, and the District took an interlocutory appeal. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8). Without reaching the governmental immunity or standing issues, the court of appeals reversed the trial court's order in part, finding all the cheerleaders' claims, except for attorney's fees, moot in light of the District's adoption of Resolution and Order No. 3. 482 S.W.3d at 127-34. That is, the court of appeals held that the cheerleaders' claims for declaratory and injunctive relief are moot because the District voluntarily discontinued its prohibition on the display of banners containing religious signs or messages at school-sponsored events. The cheerleaders then petitioned this Court for review.
We must first consider the matter of our own appellate jurisdiction. Interlocutory appeals, such as this one, are generally final in the courts of appeals.
The application of the mootness doctrine is reviewed de novo on appeal. Heckman v. Williamson Cnty., 369 S.W.3d 137, 149-50 (Tex.2012). The mootness doctrine applies to cases in which a justiciable controversy exists between the parties at the time the case arose, but the live controversy ceases because of subsequent events. Id. at 162. It prevents courts from rendering advisory opinions, which are outside the jurisdiction conferred by Texas Constitution article II, section 1. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.2000) (per curiam).
A defendant's cessation of challenged conduct does not, in itself, deprive a court of the power to hear or determine claims for prospective relief. Jacks v. Bobo, No. 12-07-00420-CV, 2009 WL 2356277, at *2 (Tex.App.-Tyler 2009, pet. denied) (mem.op.) (citing United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). If it did, defendants could control the jurisdiction of courts with protestations of repentance and reform, while remaining free to return to their old ways. Id. at *2-3. This would obviously defeat the public interest in having the legality of the challenged conduct settled. Id.
Nonetheless, dismissal may be appropriate when subsequent events make "absolutely clear that the [challenged conduct] could not reasonably be expected to recur." Bexar Metro. Water Dist., 234 S.W.3d at 131 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). Persuading a court that the challenged conduct cannot reasonably be expected to recur is a "heavy" burden. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979).
As a threshold matter, the parties dispute the scope of the challenged conduct. The cheerleaders contend that they are challenging the District's ongoing policy of treating their banners as "government" speech. The District contends that the cheerleaders are only challenging a discrete action by the District — the District's September 18, 2012, announcement that "student groups [are not allowed] to display any religious signs or messages at school sponsored events." In essence, the District contends that in opposing their plea the cheerleaders are attempting to reframe the controversy as broader than they state in their petition. We do not need to resolve this dispute, however, because, as demonstrated below, this case is not moot, even if the cheerleaders' claims are limited to the District's discrete action on September 18, 2012.
The District no longer prohibits the cheerleaders from displaying religious signs or messages on banners at school-sponsored
Indeed, while there are cases where the defendant's voluntary conduct yielded mootness in the absence of an admission by the defendant that the challenged conduct was illegal, those cases generally involved conduct that could not be easily undone, and thus foreclosed a reasonable chance of recurrence. See Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 326 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) (finding mootness after defendant expunged plaintiff's personnel file of complained-of material); Fowler v. Bryan Indep. Sch. Dist., No. 01-97-01001-CV, 1998 WL 350488, at *6-7 (Tex.App.-Houston [1st Dist.] July 2, 1998, no pet.) (not designated for publication) (finding mootness after defendant adopted peer sexual harassment policies and training plaintiff sought). This is not such a case: the District's September 18, 2012, prohibition could be easily reinstated.
This case is instead like Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841 (Tex.App.-Austin 2002, pet. denied). There, the state sent a letter threatening Seton with statutory penalties of "no less than the amount of $153,000" for failing to file certain annual reports. Id. at 844. The statute in question provided a civil penalty of no more than $10,000 for "each act of violation," which the state interpreted to mean each day of violation. Id. Seton, however, interpreted it to mean each annual report, and filed a declaratory judgment action against the state to that effect. Id. After Seton sued, the state withdrew its letter, and conceded in its counterclaim that $10,000 per report was the maximum civil penalty that it sought for the violations at issue. Id. at 844-45. The state, however, refused to concede that it misinterpreted the statute or that $10,000 per report was the maximum statutory penalty that it may assess in the future. Id. The state nonetheless argued that its conduct had mooted Seton's claims. Id. The court of appeals disagreed. Id. at
Like the state's voluntary abandonment in Seton, the District's voluntary abandonment here provides no assurance that the District will not prohibit the cheerleaders from displaying banners with religious signs or messages at school-sponsored events in the future. Indeed, Resolution and Order No. 3 only states the District is not required to prohibit the cheerleaders from displaying such banners, and reserves to the District unfettered discretion in regulating those banners — including the apparent authority to do so based solely on their religious content. Thus, like Seton, this case is not moot.
Accordingly, we grant the cheerleaders' petition for review and without hearing oral argument, TEX. R. APP. P. 59.1, reverse the court of appeals' judgment and remand the case to that court for further proceedings.
JUSTICE WILLETT filed a concurring opinion.
JUSTICE GUZMAN filed a concurring opinion.
JUSTICE BOYD did not participate in the decision.
JUSTICE WILLETT, concurring.
One of the more memorable scenes in The Lion King occurs as Mufasa and Simba sit high atop Pride Rock overlooking Mufasa's kingdom.
In narrowly deciding that the school district's policy change did not moot the controversy in this case, the Court today rightfully stays within the borders of its authority, and I concur in full. I write separately, however, to ask, "What about that shadowy place?" The shadowy place in this case is well camouflaged by general phrases like "plaintiffs' claims" and "the constitutional challenge" in today's writings. The reality is that we know there is a live controversy, but we don't know much else. It is unclear from this record which claims are live, and consequently, what this case means for religious liberty-Texans' "natural and indefeasible right to worship Almighty God according to the dictates of their own conscience."
A brief review of the facts illustrates my concern. Cheerleaders of Kountze Independent School District (KISD) profess deeply held religious beliefs. Before every football game, they construct and display run-through banners that KISD players — the mighty Kountze Lions — tear through as they storm the field. For years, the cheerleaders have placed inspirational religious messages on the banners. The messages are often based on Bible verses:
The cheerleaders' stated purpose was to express a positive, encouraging message in good sportsmanship, rather than the more fiery expressions displayed on other banners such as "Pluck the Eagles" or "Beat the Bulldogs."
In late 2012, the Freedom from Religion Foundation sought to uproot this tradition. The Foundation alleged in a letter to KISD that the cheerleaders' banners violated the Establishment Clause of the United States Constitution. The Foundation demanded that KISD "take immediate action to end the practice of displaying religious messages before school-sponsored events." KISD opted for preemptive capitulation (a common response) and promptly acceded to the Foundation's "ban the banners" dictate.
The cheerleaders sued KISD and obtained a temporary injunction preventing KISD's prohibition of the banners. The cheerleaders claimed that KISD's prohibition violated their free speech and free exercise rights under the Texas Constitution. They sought permanent relief preventing KISD from further violating those rights. For its part, KISD later concluded that the Establishment Clause did not require KISD to prohibit the banners and permitted the cheerleaders' banners subject to KISD's claimed "right to restrict the content of school banners." KISD denied, however, that it had violated the cheerleaders' free speech and free exercise rights and sought declaratory relief stating that the Establishment Clause did not require it to prohibit the cheerleaders' banners. In the parties' various motions, they vigorously debated whether the speech on the banners was the cheerleaders' private speech or KISD's speech.
That debate culminated in competing motions for summary judgment. KISD's motion repeated its request for declaratory relief on Establishment Clause grounds. The cheerleaders' motion proposed two solutions: (1) the trial court could sign a proposed order that virtually mirrored KISD's request for declaratory relief; or (2) the trial court could hold that the cheerleaders' speech is private speech uttered in a public forum. As to Option 1, the cheerleaders told the trial court that "KISD's sudden adoption of the Plaintiff's position that religious messages on the Cheerleaders' run-through banners are constitutionally permissible vindicates the Cheerleaders' rights and brings this case to an end. All that is required is an appropriate order by the Court." In their words, the cheerleaders sought "the same relief" sought by KISD. The trial court chose Option 1 and signed the proposed order, which, in relevant part, states "[n]either the Establishment Clause nor any other law prohibits the cheerleaders from using religious-themed banners at school sporting events."
Both sides won, right?
The record does not yield a conclusive answer. At the hearing on the parties' pending motions, the cheerleaders told the trial court that the signed order would be an alternative to the court having to decide whether their speech was private speech. The cheerleaders said "the order that's in front of the Court right now actually does not ultimately take sides on that question [of government-versus-private speech] but still gives us the relief we are willing to live with in order to be able to bring this case to a conclusion." The day before, however, in support of their summary-judgment motion, the cheerleaders had relied upon the text of the temporary injunction order, arguing that "[a]s the Court has already determined the messages on the Cheerleaders' banners [are] private speech[,] no additional ruling regarding the nature of the speech is necessary at this time." The temporary injunction order had indeed described the banner speech as "private religious expression." Additionally, the cheerleaders contended that "the Establishment Clause... is inapplicable to private speech." which, taken together with the text of the temporary injunction order, could explain the cheerleaders' understanding that the trial court's order designates the banner speech as private speech.
Bottom line: We don't know. What does the trial court's order accomplish? What claims have been preserved? What claims have been waived? In our pitched adversarial system, it is not uncommon for litigants to talk past each other, and uncertainty pervades the parties' briefs to this Court. But answers to these questions are critical for they speak to the fundamental
Because this is an interlocutory appeal, the Court appropriately does not address those core merits issues, rendering Mufasa's admonition that Simba "never go there" inapposite for the moment. But if this case returns to the trial court, a future appellate court, including this one, may well be required to go there. My concern is that this case may return to the trial court for a final decision only to reappear on our docket with no clarity as to what this order achieves and what claims are actually live. If that situation arises, the parties and trial court would do well to confront the shadowy place in this litigation and clarify with precision the status of this order and the cheerleaders' claims.
JUSTICE GUZMAN, concurring.
At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.
The fundamental right of every American to hold and profess individual religious beliefs is deeply rooted in our constitutional firmament and derives from the ideal of religious liberty that gave birth to our nation. In enacting the Texas Constitution, the people of this great State, "[h]umbly invoking the blessing of Almighty God," further guaranteed freedom of religious expression. See TEX. CONST. PREAMBLE & ART. 1, §§ 6-8. While efforts to accommodate competing constitutional interests may necessitate reasonable limitations on each of those interests, the challenge is knowing where to draw the line. Constitutional analysis is rarely susceptible to doctrinal absolutes, but courts, guided by the words of our charters, must not shy away from defining the contours; otherwise, freedom is compromised. In this case, I agree with the Court that a justiciable controversy is presented.
The Constitutions of the United States and the State of Texas protect freedom of expression and guarantee our citizens the right to practice their own religion or no religion at all. See U.S. CONST. AMEND. I; TEX. CONST. art. 1, §§ 6-8. Similar to the Texas Constitution, the United States Constitution assures religious freedom through a pair of complementary but potentially opposing directives: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. CONST. AMEND. I; see also TEX. CONST. art. 1, §§ 6-8; HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627, 642 (Tex.2007) (sections 6 and 7 of the Texas Constitution are Establishment Clause equivalents). Given the "internal tension in the First Amendment between the Establishment Clause and the Free Exercise Clause," Tilton v. Richardson, 403 U.S. 672, 677, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) (plurality opinion), governmental authorities attempting to navigate the fine line that can separate the two risk unduly impinging one in an effort to comply with the other, cf. Cutter v. Wilkinson, 544 U.S. 709, 719, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005)
"First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Yet, in untold situations, that is precisely what happens, and it occurs more frequently than our constitutional safeguards permit. Too often, public-school officials unduly target religious speech, at times misunderstanding Supreme Court precedent allowing them to preserve order at school, see id. at 513, 89 S.Ct. 733, or due to confusion about the religious-endorsement proscription, see Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 305-08, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). Examples abound:
A review of cases from around the country confirms these are not isolated instances of viewpoint discrimination.
In limited circumstances, courts have allowed school districts to curtail students' religious expression,
The need for further guidance is exemplified by cases in which perplexed school officials have switched sides multiple times, sometimes allowing and other times disallowing the contested speech.
Our state and federal constitutions embody a fundamental commitment to religious liberty and guarantee the freedom to express diverse thoughts without governmental interference. To adequately protect these rights, courts must not jealously guard their jurisdiction when disputes arise. "[O]ur Constitution requires vigilance lest courts overstep their jurisdictional bounds, [but] courts also must dutifully exercise jurisdiction rightly theirs." Heckman v. Williamson Cnty., 369 S.W.3d 137, 144 (Tex.2012). A justiciable controversy exists in this case because Kountze Independent School District has not met its "formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). To the contrary, the school district has offered no promise of permanency, only an equivocal and conditional change of policy. See Lakey v. Taylor ex rel. Shearer, 278 S.W.3d 6, 12 (Tex.App.-Austin 2008, no pet.) ("Where a policy is challenged as unconstitutional, voluntary cessation of such policy, without an admission or judicial determination regarding its constitutionality, is not sufficient to render the constitutional challenge moot."). Because the constitutional challenge at issue in this case has not been resolved with the degree of assurance required to deprive the courts of jurisdiction over the controversy, I fully join the Court's opinion and judgment.