Although graduation day is traditionally a time for celebration and for new beginnings, it can bring an unhappy ending to the legal claims of a student who is challenging school censorship. In general, challenges to school policies must be raised by currently affected students. When a student graduates, a court may dismiss her claims as moot.[1] Several federal appeals courts have agreed.[2] Lane v. Simon, a 2007 case decided by the Tenth Circuit, illustrates how this mootness problem can present serious challenges to student press plaintiffs’ ability to secure their First Amendment rights through litigation. But Lane also provided a road map of possible ways to overcome a claim of mootness.
In Lane, the Tenth Circuit held that the claims of two former editors of Kansas State University’s newspaper became moot after they graduated.[3] The student editors had filed a federal civil-rights action under 42 U.S.C. Section 1983, alleging that the university violated their First Amendment rights by removing the newspaper’s faculty advisor based on the content of the newspaper. The district court granted defendants’ motion to dismiss, and the two editors, who had since graduated, appealed to the Tenth Circuit. In holding that the former editors’ claims were moot, the court reasoned that university defendants could no longer impinge on the former student editors’ exercise of freedom of press after their graduation. The court also noted that plaintiffs had not (1) substituted current editors as plaintiffs; (2) sued for damages; (3) added the separately incorporated newspaper as a plaintiff; (4) sued in a representational capacity in a class action, or (5) alleged that the First Amendment infringement caused them any present or future consequences.[4]
The Tenth Circuit’s decision outlines some of the obstacles in front of student press plaintiffs. By requiring continual substitution of plaintiffs and pleading for monetary relief, with its qualified immunity challenges, Lane complicates the way student press plaintiffs must plead. As a result, school administrators have a perverse incentive to censor underground media outlets, which may not have the succession structure to substitute plaintiffs, or to censor students close to graduation. But Lane also presents an opportunity to discuss strategies that student press plaintiffs may use to avoid mootness upon graduation in the future.
The Challenge of Injunctive Relief
As a fundamental matter, courts are unable to address moot issues because, under Article III of the Constitution, the courts may only hear live cases or controversies.[5] In other words, federal courts have no power to give opinions on moot questions or declare principles of law that cannot affect the matter at issue in the case.[6] Cases become moot when the parties lack a legally recognized interest or a personal stake in the outcome of the controversy.[7]
Students fighting censorship almost always ask for an injunction — a court order directing the censor to cease interfering with student editors’ autonomy. They may also seek a declaratory judgment — an order that does not actually direct any party to do anything, but simply declares that a certain practice is legal or illegal. Federal courts generally have held that graduation moots a claim for declaratory or injunctive relief against a school’s action or policy, even if the student retains a live claim for money damages.[8] In addition to the importance of stopping an unlawful practice, injunctive relief is also a valuable recourse for another tactical reason — unlike money damages, state government officials do not enjoy Eleventh Amendment immunity from court injunctions that merely direct them to cease doing something in the future.[9]
Given the need for some sort of injunctive relief in most media cases, student plaintiffs should ask whether any exception to general mootness rules might apply.
A. Can You Add New Parties?
Plaintiffs may employ several common strategies to prevent the mootness problems discussed in Lane. Perhaps the most obvious is simply to add other plaintiffs who will not graduate in the near future. This strategy of “rolling plaintiffs” requires the plaintiff to file a motion with the court, which the judge may grant “on just terms” at his discretion.[10]
The drawbacks to this strategy are numerous. First, under federal rules, a judge has discretion whether to add a party, and some judges will not permit plaintiffs to completely roll over.[11] Second, as in Lane, students that come later may not wish to get involved in the litigation and may decline to become parties. This is especially likely where “rebellious” editors have been replaced by more compliant editors. Third, it takes considerable planning and diligence to ensure that plaintiffs who are far away from graduating are added to the litigation with sufficient time to prevent the controversy from becoming moot. Fourth, some student press outlets, such as underground newspapers or blogs, do not have a clear chain of command and may not have the organizational structure to add plaintiffs later. Still, adding plaintiffs is a popular strategy where it is feasible.
B. Do the Past Acts Have Lasting Consequences?
A simpler strategy is to characterize the First Amendment violation as having some present, future, or collateral consequences that the court may address. If the student plaintiff continues to suffer consequences of the wrongful action and pleads for injunctive relief, the student’s graduation will not moot a controversy.[12] Courts have held that when a student’s record contains negative information based on allegedly unconstitutional school regulations, that information may jeopardize the student’s future employment or college career.[13] If a former student’s record contains evidence of disciplinary sanctions, and she seeks an order requiring school officials to expunge the discipline from her record, the action will likely not be moot.[14] For example, in a Ninth Circuit case decided in 2007 where a student was reprimanded for student election code violations, a claim by the student seeking to cleanse his record was not moot even though he had graduated.[15] Student press plaintiffs can argue that they continue to suffer consequences of the wrongful action, and thus, the court should not moot their claims for injunctive and declaratory relief upon graduation.
C. Was the School’s Action Capable of Repetition Yet Evading Review?
Another relevant exception to the mootness doctrine applies to a limited set of cases that are capable of repetition, yet evading review.[16] This exception applies when the allegedly unconstitutional practice has a finite term that makes it impractical to bring a legal challenge; the textbook example is a challenge based on a woman’s pregnancy, which will run its full course in nine months before a court case can be tried and appealed.[17] But the practice must have the potential to affect the very same person; it is not enough to argue that the unconstitutionality could injure other people. Consequently, the Supreme Court has held that, in the absence of a class action, this exception is not available when students request prospective or injunctive relief and have graduated from the defendant college.[18]
Following this rationale in Lane, the Tenth Circuit refused to adopt the exception for cases “capable of repetition, yet evading review,” because the case failed the second prong of the test. The court stated that “there is no reasonable expectation that Lane and Rice will be subjected, post-graduation, to censorship by defendants in connection with that newspaper.”[19] Similarly, in Cole v. Oroville Union High School District, the Ninth Circuit refused to apply the “capable of repetition yet evading review” exception to the mootness doctrine to a high school valedictorian whose speech was censored by school officials, but who had graduated by the time the case reached appeal.[20]
However, this exception may still be useful for some student plaintiffs. In Lee v. Weisman, the Supreme Court found that this exception applied to a student who objected to a prayer at her middle school, even though she had graduated from middle school, because she had enrolled in a high school in the same district.[21] Therefore, it appeared “likely, if not certain, that an invocation and benediction [would] be conduct[ed] at her high school graduation.”[22] While this case falls under First Amendment jurisprudence relating to the Establishment Clause, its reasoning may be applicable to student free speech cases where a student’s free press rights are violated in middle school and she enrolls in a high school within the same district. Or, this case may be applicable, where a college student graduates, and enrolls in a graduate program at the same school. Students bringing First Amendment press challenges should not rely on the “capable of repetition, but evading review” exception, but they should continue to argue that exception should apply to the student press setting.
D. Is Declaratory Relief Available?
The Declaratory Judgment Act provides in part that “in a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration.”[23] Although most courts will consider an action for declaratory judgment moot if a request for injunctive relief is moot, it may be worth challenging this conventional wisdom.
In Super Tire Engineering Co. v. McCorkle, the Supreme Court held that district courts are obligated to decide the merits of declaratory relief claims even where a request for injunctive relief is moot.[24] The Court found that “even though the case for an injunction dissolved with the subsequent settlement of [a labor] strike,” the parties to the underlying dispute “may still retain sufficient interests and injury as to justify the award of declaratory relief.”[25]
Thus, while most courts will moot a declaratory judgment claim along with a mooted claim for injunctive relief, plaintiffs should challenge the court to make a separate determination and uphold standing on the declaratory judgment relief.
Seeking Damages May Avoid Mootness, But Has Drawbacks
Probably the most straightforward way a student plaintiff may avoid mootness concerns is to seek monetary relief.[26] For example, in Husain v. Springer, the court found that student newspaper plaintiffs’ injunctive relief and declaratory judgment actions were moot upon graduation, but their graduation did not moot the claims for damages.[27] A student plaintiff should request monetary relief from the beginning, since in some circumstances courts may not grant plaintiffs leave to amend their complaint and request monetary damages.
But requesting money damages is not a cure-all, because doing so raises public-relations and Eleventh Amendment immunity concerns. Student press lawsuits ideally aim to protect free speech principles rather than to pad the pocketbook, and it would distract from those principles if student press plaintiffs sought large sums of money. One way to avoid public relations concerns is to request nominal damages — often a single dollar. Yet even if a plaintiff requests nominal damages, the plaintiff must jump over high hurdles of Eleventh Amendment immunity.
Qualified immunity shields public officials from having to pay money damages when sued under 42 U.S.C. Section 1983 as individually named defendants.[28] Qualified immunity requires the court to rule in favor of a government employee sued for money damages unless the employee’s conduct violates clearly established statutory or constitutional rights, of which a reasonable person would have known.[29]
Qualified immunity is challenging to overcome. For example, in Husain v. Springer, the Second Circuit held that a university president violated the First Amendment by nullifying a student government election after the student newspaper supported particular candidates.[30] Plaintiffs had sought a declaratory judgment, injunctive relief, nominal compensatory damages and punitive damages, but the declaratory judgment and injunctive relief claim were held to be moot. The requests for monetary damages survived, but despite finding a clear First Amendment violation, the Second Circuit held that the president may have been entitled to qualified immunity and sent the case back to the district court.[31]
Another instructive example of the challenges associated with qualified immunity was Hosty v. Carter, where student journalists sued university officials and a dean for prior restraint of their speech.[32] After a college newspaper printed stories critical of the dean, the dean instructed the paper’s printer not to print any further issues unless the dean approved them in advance. The students sued seeking injunctive relief and damages for a First Amendment violation. The district court dismissed the university officers, but granted summary judgment in favor of the student plaintiffs against the dean. The dean appealed and the Seventh Circuit reversed, holding in part that the dean was entitled to qualified immunity because, at the time the dean acted, it was unclear whether the Supreme Court’s Hazelwood v. Kuhlmeier decision applied to college as well as high school newspapers.[33] The Hazelwood decision allowed public schools to regulate the content of curricular media paid for by the school, if the regulation advanced “legitimate pedagogical concerns.” Thus, the student newspaper’s right to be free from prior restraints by the university was not a clearly established constitutional principle that a reasonable person should have known, and the dean was entitled to qualified immunity.[34]
Husain and Hosty notwithstanding, many free press protections are clearly established constitutional principles of which a reasonable person should know. In these cases, First Amendment plaintiffs have made it past qualified immunity. For example, a federal appellate court recently upheld an award of nominal damages and attorneys fees and costs where students were disciplined for wearing black armbands in protest of school policies.[35] Similarly, another federal appellate court refused to grant a motion for summary judgment on behalf of Alabama teachers who allegedly disciplined a student for “silently raising his fist during the daily flag salute instead of reciting the Pledge of Allegiance with the rest of his class.”[36] That court held that immunity was inappropriate because the Supreme Court “clearly and specifically established that schoolchildren have the right to refuse to say the Pledge of Allegiance.”[37]
Other Strategies to Consider to Avoid Mootness Upon Graduation
A. Corporate Standing
Where a publication is separately incorporated, student plaintiffs should consider making the corporation a co-plaintiff. In Lane, for example, the students may have avoided the mooting of their claims if the publisher had become party to the litigation. The Tenth Circuit expressly pointed out that Student Publications, Inc., the non-profit corporate publisher, was not named initially as a party, and did not seek to join litigation.[38] Unfortunately, corporate standing will work to avoid mootness only for those media outlets that are incorporated, which excludes nearly all high school media. Moreover, challenges may arise if faculty memberswho are sympathetic to the university sit on the board of the corporate entity. However, where possible, separately incorporated entities should become parties to the litigation, as the corporate entity will have a continuing stake in the litigation, even after individual students graduate.
B. Third-Party Standing
Another creative solution is to claim third-party standing, although the chances of succeeding with this strategy are uncertain. Courts sometimes permit one plaintiff to stand in as the representative for another, if the injured party would have difficulty bringing suit on his own behalf; for instance, physicians have been allowed to bring suit to address injury to their patients. In Lane, however, the Tenth Circuit expressly rejected the plaintiff’s request to confer third-party standing on former editors of the student paper, on behalf of the newspaper’s current and future editors.[39]
Though it is not common, some courts have held that third parties may bring suits on behalf of student publications whose rights were violated, but who cannot bring a claim because the affected students graduated. In State Board for Community College and Occupational Education v. Olson, the trial court held that the students’ claims were moot because one student could exercise her First Amendment rights through a replacement newspaper and the two other student plaintiffs had graduated during the litigation.[40] On appeal, however, the Colorado Supreme Court held that a faculty adviser had third-party standing to challenge the student senate’s termination of funding for a community college sponsored newspaper, to protect student journalists’ First Amendment rights.[41] The court reasoned that the faculty adviser had a substantial relationship with the students and would be an effective proponent of their First Amendment rights. Further, the court recognized that without third-party standing, the rights of students would be diluted, since students would be mooted out upon graduation.
Following Olson, student press plaintiffs should consider alleging third-party standing if mootness becomes an issue, especially if a faculty adviser is willing to join the suit. While few such claims are successful, third-party standing may be more successful in the future if courts find that mootness upon graduation prevents students from enforcing their First Amendment rights.
C. Class Action Lawsuits
When a defendant’s conduct affects a large number of students and a claim against a defendant is brought as a class action under Federal Rule of Civil Procedure 23, the case may stand a better chance of surviving a mootness challenge. The lead individual plaintiffs in a class action are known as the “class representatives,” who sue on behalf of themselves and others sharing their interests. The claims of unnamed members of a class may remain alive even though the claims of the class representatives have become moot.
Students occasionally have successfully used class actions to protect their First Amendment rights, by challenging school policies on behalf of all current and future students in a district. For example, in Hernandez v. Hanson, plaintiffs sought to enjoin enforcement of policies and regulations of the Omaha School District, which required students to obtain prior approval before distributing literature on behalf of non-school sponsored organizations within public schools.[42] Even though these students had graduated, the court held that certification of the case as a class action pursuant to Rule 23 precluded a mootness defense.
Plaintiffs who wish to bring class actions must be careful to specifically request Rule 23 class action status, because the courts will not imply it. In Board of School Commissioners of the City of Indianapolis v. Jacobs, the Supreme Court explained that six students’ First Amendment claims would be dismissed as moot after they graduated, unless the case was properly certified as a class action.[43] The named plaintiffs in the class action were students involved with the student newspaper, who alleged that the defendants interfered with the publication and distribution of the paper. The students sued as representatives of a class of all students attending schools managed by the defendant board, but did not adequately comply with Rule 23(c), which requires the named plaintiffs to certify, identify, and describe the class. The Court noted that the class description is especially important in cases where the litigation is likely to become moot as to the initial named plaintiffs prior to the exhaustion of appellate review.[44] Similarly, in Fox v. Board of Trustees of SUNY, the court would not regard the lawsuit as a class action, where the students who had graduated did not attempt to have a class certified, or allege in their pleadings that they were bringing an action behalf of similarly situated students.[45]
Plaintiffs attempting to bring a class action for violations of First Amendment rights should be careful to comply with all of the elements of Rule 23. If students bring a class action correctly, it may provide protection from mootness claims after the named plaintiffs graduate. Class actions may be most applicable to challenge policies that affect large numbers of students, such as challenges to school district policies.
D. Relief Under State Law
California legislators took action in 2008 avoid the inequity of depriving student plaintiffs of their claims in mid-stream. The legislature approved, and Gov. Arnold Schwarzenegger signed, a statute providing that students whose free-speech rights are violated while they are in school do not forfeit their claim when they graduate.[46] While California’s is the only explicit “claim saving” statute enacted since Lane, student plaintiffs should at least consider whether a state-law remedy provides more relief than that recognized by the federal courts.
Conclusion
To prevent the mootness issues raised by Lane v. Simon and similar cases, student press plaintiffs may be best off if they request several forms of relief, including injunctive relief, declaratory relief, and nominal monetary relief. When requesting injunctive relief, plaintiffs should attempt to add students who will not graduate in the near future and should continue to do so throughout the litigation. Furthermore, if plaintiffs successfully argue that the defendant’s violation of their First Amendment rights has present, future, or collateral consequences, claims for injunctive and declaratory relief will not become moot upon their graduation. With declaratory relief, plaintiffs should challenge courts to determine separately whether the issue is moot. In requesting monetary relief, plaintiffs will avoid mootness upon graduation, but must be prepared to argue that the First Amendment right violated was clearly established and that reasonable people would have known of that right. Students should continue to argue that the “capable of repetition, yet evading review” exception should apply. Such arguments will challenge the courts to address these critical student mootness issues.
When student plaintiffs employ more creative strategies, they should be mindful of the school setting. For those student press outlets that are separately incorporated from the school, those plaintiffs should add the corporate entity as a plaintiff. That will prevent mootness upon graduation of individual students. Also, student press plaintiffs should continue to make third-party standing arguments, which may be more successful in schools where the faculty advisor has a substantial relationship with the outlet in a teaching capacity. Finally, for secondary school press plaintiffs and potentially students from large universities, a class-action lawsuit may successfully prevent mootness upon graduation of the named plaintiff representatives. Overall, student press plaintiffs and their attorneys should pursue common and creative pleading strategies, with awareness of the challenges associated with each, to navigate and prevent mootness issues.
Endnotes
1 15 James Wm. Moore et al., Moore’s Federal Practice ? 101-176.6 (3d ed. 2008). 2 See Lane v. Simon, 495 F.3d 1182, 1186-87 (10th Cir. 2007) (holding that since plaintiffs had graduated and no longer served on the board of their student newspaper, defendants could no longer impinge on their freedom of press, and the claims for declaratory and injunctive relief were moot); Fox v. Bd. of Trustees of SUNY, 42 F.3d 135, 140 (2d Cir. 1994), cert. denied, 515 U.S. 1169 (1995) (holding that declaratory and injunctive claims were mooted by graduation); Alexander v. Yale Univ., 631 F.3d 178, 184 (2d Cir. 1980) (holding that graduation prevented the court from hearing the claim); Pederson v. Louisiana State Univ., 213 F.3d 858, 873-75 (5th Cir. 2000) (holding that injective relief claim asserted by female university student in a Title IX effective accommodation suit, but not the damages claims, were mooted by graduation); Sapp v. Renfroe, 511 F.2d 172, 175 (5th Cir. 1975) (holding that graduation from school terminated existence of live controversy); Caldwell v. Craighead, 432 F.2d 213, 218 (6th Cir. 1970), cert. denied, 402 U.S. 953 (1971) (holding that a free speech case was mooted by graduation); Jordan v. Indiana High Sch. Athletic Ass’n, 16 F.3d 785, 787 (7th Cir. 1994) (holding that student’s graduation rendered claim moot); Johnson v. Florida High Sch. Activities Ass’n, 102 F.3d 1172, 1173 (11th Cir. 1997) (holding that a 19-year-old high school football player’s suit seeking to enjoin enforcement of a rule forbidding students 19 and over from participating in high school athletics was moot because the football season had concluded and the student planned no further participation in high school athletics). 3 Lane, 495 F.3d at 1186-87. 4 Id. at 1187. 5 Friends of the Earth, Inc. v. Laidlaw Env’l Services, Inc., 528 U.S. 167 (2000) (construing U.S. Const. Art. III, Sec. 2, cl. 1). 6 Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992); Lane, 495 F.3d at 1186. 7 New York City Employees’ Retirement System v. Dole Food Co., 969 F.2d 1430, 1433 (2d Cir. 1992). 8 Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1100 (9th Cir. 2000). 9 Wood v. Strickland, 420 U.S. 308, 314 n.6 (1975); Will v. Michigan Dept. of State Police, 491 U.S. 58, 70 (1989); Ex Parte Young, 208 U.S. 123 (1908). 10 Fed. R. Civ. P. 21. 11 Compare Interphase Garment Solutions, LLC v. Fox Television Stations, Inc., 566 F. Supp. 2d 460, 467 (D. Md. 2008) (granting unopposed Rule 21 motion to drop all named defendants in favor of new defendant) with Banks v. Gonzales, 415 F. Supp. 2d 1248, 1251-52 (N.D. Okla. 2006), aff’d, 490 F.3d 1178 (10th Cir. 2007) (refusing to grant a complete substitution of parties under Rule 21). 12 Flint v. Dennison, 488 F.3d 816, 823-24 (9th Cir. 2007). 13 Id. 14 Id. at 824 (citing Hatter v. L.A. City High Sch. Dist., 452 F.2d 673, 674 (9th Cir. 1971)). 15 Id. 16 Murphy v. Hunt, 455 U.S. 478, 482 (1982). 17 Flint, 488 F.3d at 824 (citing Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). 18 See Bd. of Sch. Comm’rs of Indianapolis v. Jacobs, 420 U.S. 128, 129-30 (1975) (dismissing as moot a challenge by high school student to regulations of their school newspaper after the court learned at oral argument that all plaintiffs had graduated). 19 Lane, 495 F.3d at 1187. 20 Cole, 228 F.3d at 1098. 21 Lee v. Weisman, 505 U.S. 577, 584 (1992). 22 Id. 23 28 U.S.C. Sec. 2201. 24 416 U.S. 115, 121-22 (1974). 25 Id. 26 University of Texas v. Camenisch, 451 U.S. 390, 393-94 (1981); 13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure: Jurisdiction 3D Sec. 3533.3, at 262 (2d ed. 1984). 27 Husain v. Springer, 494 F.3d 108, 121 (2d Cir. 2007). 28 Morse v. Frederick, 127 S. Ct. 2618, 2624 n.1 (2007) (citing Wood v. Strickland, 420 U.S. 308, 314 n.6 (1975)). 29 Id. at 2640 (Breyer, J., concurring) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 30 Springer, 494 F.3d at 113. 31 Id. at 131. 32 412 F.3d 731, 735 (7th Cir. 2005) cert. denied, 546 U.S. 1169 (2006). 33 Id. at 738. 34 Id.at 739.35 Lowry ex rel. Crow v. Watson Chapel Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008). 36 Holloman v. Harland, 370 F.3d 1252, 1259 (11th Cir. 2004). 37 Id. at 1269; see also Seamons v. Snow, 84 F.3d 1226, 1238 (10th Cir. 1996) (“[i]n light of the well established principle that the government may not deny a benefit to a person because of his constitutionally protected interests, and the well established framework of the Tinker analysis, we cannot say at this point that Defendants are entitled to qualified immunity”) (citation omitted). 38 Lane, 495 F.3d at 1187. 39 Id. 40 State Bd. for Community Colleges and Occupational Educ. v. Olson, 687 P.2d 429, 431 (Colo. 1984). 41 Id. at 434. 42 430 F. Supp. 1154, 1156 (D. Neb. 1977). 43 420 U.S. 128, 129-30 (1975). 44 Id. 45 Fox v. Bd. of Trustees of SUNY, 42 F.3d 135, 142 (2d Cir. 1994). 46 2008 Cal. Legis. Serv. Ch. 525 (S.B. 1370) (West), to be codified at Ca. Educ. Sec. 48907 et seq.