PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 15-3083 ______________ FREEDOM FROM RELIGION FOUNDATION INC; DOE 1, by Doe 1's next friend and parent, Marie Schaub; MARIE SCHAUB, who also sues on her own behalf v. NEW KENSINGTON ARNOLD SCHOOL DISTRICT Freedom From Religion Foundation, Inc.; Marie Schaub, Appellants ______________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:12-cv-01319) District Judge: Hon. Terrence F. McVerry ______________ Argued: May 19, 2016 ______________ Before: SMITH, HARDIMAN, and SHWARTZ, Circuit Judges (Opinion Filed: August 9, 2016) Patrick C. Elliott Freedom from Religion Foundation 10 North Henry Street Madison, WI 53703 Marcus B. Schneider [ARGUED] Steele Schneider 428 Forbes Avenue, Suite 700 Pittsburgh, Pennsylvania 15219 Counsel for Appellants Christine Lane Anthony G. Sanchez [ARGUED] Sanchez Legal Group, LLC 2403 Sidney Street, Suite 242 River Park Commons Pittsburgh, Pennsylvania 15219 Counsel for Appellee Richard B. Katskee Alexander J. Luchenitser Americans United for Separation of Church & State 1901 L Street, N.W. Suite 400 Washington, DC 20005 Stephen M. Shapiro Charles M. Woodworth [ARGUED] Mayer Brown LLP 71 South Wacker Drive Chicago, Illinois 60606 2 Brian D. Netter Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 Steven M. Freeman David L. Barkey Anti-Defamation League 605 Third Avenue New York, NY 10158 Jeffrey I. Pasek Cozen O’Connor 1650 Market Street Philadelphia, PA 19103 Harsimran Kaur Gurjot Kaur The Sikh Coalition 50 Broad Street, Suite 1537 New York, NY 10004 Counsel for Amicus Curiae ______________ OPINION ______________ SHWARTZ, Circuit Judge. Marie Schaub, her daughter Doe 1, and the Freedom From Religion Foundation (“FFRF”) (collectively, “Appellants”) brought suit under 42 U.S.C. § 1983, alleging 3 that the New Kensington-Arnold School District (“the District”) violates the Establishment Clause by maintaining a monument of the Ten Commandments at its public high school. The District Court granted the District’s summary judgment motion, concluding that the Appellants lack standing and their request for injunctive relief is moot. Because Schaub has standing to seek both nominal damages and injunctive relief, and her request for injunctive relief is not moot, we will reverse the District Court’s order dismissing her claims. We will vacate the order dismissing FFRF’s claims to allow the District Court to consider whether Schaub was a member of FFRF at the time the complaint was filed. As to Doe 1, we need not address whether she has standing to obtain an injunction, but conclude that the District Court correctly found that she lacks standing to seek nominal damages, and we will affirm the order granting the District summary judgment with respect to this claim. I In 1956, the New Kensington Fraternal Order of the Eagles, a non-profit charitable organization, donated a six- foot granite monument inscribed with the Ten Commandments to be placed on the grounds of Valley High School in New Kensington. The donation was part of a nationwide program spearheaded by the Eagles’ Youth Guidance Committee through which local chapters of the organization donated over 140 such monuments. The Committee believed that troubled young people would benefit from exposure to the Ten Commandments as a code of conduct. In addition to the text of the Ten Commandments, the tablet is adorned with images of an eagle, an American flag, the Star of David, the Chi-Rho symbol, a Masonic eye, 4 and tablets with Hebrew and Phoenician lettering. The monument is located near the entrance to the high school’s gymnasium, which is accessible from the student parking area via two railed footpaths. Anyone entering the school via these paths passes within 15 feet of the monument. The parties disagree about how closely one must approach the monument in order to read its text. On March 20, 2012, FFRF, an organization dedicated to promoting separation of church and state, wrote a letter to the Superintendent of the District requesting that the monument be removed. The school board rejected the request. Local media reported on the letter and the school board’s decision. Schaub saw one such story on television, and contacted FFRF through its website. She states that she has “been a member of FFRF since August 2012, when [she] contacted FFRF regarding this lawsuit.” App. 734.1 Schaub and Doe 1 live within the New Kensington- Arnold School District. Schaub had visited the high school 1 Schaub was questioned about how she became a member of FFRF during her April 2014 deposition, and was asked “how long are you a member for?” to which she answered, “[t]his year.” App. 834. The questioner then said “[i]s that all?” and Schaub responded “[y]es, I believe my membership expires in 2015.” App. 834. The District used this exchange to conclude that Schaub was not a member at the time the lawsuit was filed in 2012. The only evidence to support the claim that Schaub was a member when the suit was filed is her December 2014 declaration, which stated that she has “been a member of FFRF since August 2012.” App. 734. 5 and come into contact with the monument in the past while taking Doe 1 to a karate event, picking Doe 1 up from a program at the high school swimming pool, and dropping off her sister, whose child attends the high school, to attend events at the school once or twice. In addition, Doe 1 was scheduled to attend the high school beginning in August 2014, and Schaub planned to drive her to school. Schaub estimates that from the curb, where she would pull over to drop someone off at the gym’s entrance, she could see the monument and make out the title, “The Ten Commandments” as well as the word “Lord,” which are printed in a larger font than the remaining text. App. 820-22. The monument can also be seen from the road on which Schaub and Doe 1 frequently travel. Schaub did not testify that she ever read the full text of the monument, but said that she walked by it and views it as “commanding” students and visitors at the high school to worship “thy God,” brands her as “an outsider because [she] do[es] not follow the particular religion or god that the monument endorses,” App. 679, and makes her “stomach turn[ ],” App. 824. She wishes to bring up her daughter without religion and “do[es] not want Doe 1 to be influenced by the Ten Commandments monument in front of Valley High School.” App. 680. Doe 1, who identifies as non-religious, recalls walking past the monument to attend the karate event when she was six or seven years old, and to use the high school swimming pool between third and fifth grade, but “never read it,” App. 684, “was young so [she] didn’t really know what it meant,” App. 687, and “didn’t really pay attention to it.” App. 684. 6 She subsequently “looked at it because [her] mom was [ ] worried about it” and “wanted to see what it was about.” App. 684. Specifically, Doe 1 testified that she reviewed a picture of the monument, and has seen it from the road while being driven to a friend’s house. When asked at her deposition about her reaction to the monument, Doe 1 testified that she “didn’t really feel anything when [she] was young,” and right now, does not “feel like [she] ha[s] to believe in god, but . . . [that] since it’s there in front of a school that they kind of want you to be that way.”2 App. 864. Appellants concede the record is silent as to whether Doe 1 had this view at the time the complaint was filed. On September 14, 2012, Appellants filed a complaint in the United States District Court for the Western District of Pennsylvania alleging that the presence of the monument on public school property violates the Establishment Clause and seeking declaratory and injunctive relief, nominal damages, and attorneys’ fees.3 During the pendency of the lawsuit, Schaub and Doe 1’s contact and possible contact with the monument continued. Doe 1 attended the eighth grade dinner dance at the high school in May 2014, and she expressed an interest in attending classes at the Northern Westmoreland 2 While the complaint alleges Doe 1 has “felt anxiety over the proposition that the religious monument will” remain at the school, Compl. at 6-7, ECF No. 1, the record shows that Doe 1 did not state any negative feelings about the monument. 3 Nominal damages are a type of damages awarded for the violation of a right “without proof of actual injury.” Carey v. Piphus, 435 U.S. 247, 266 (1978). 7 Career & Technology Center, which is located on the high school campus. In August 2014, Schaub sent Doe 1 to a different high school, which required her to leave her middle school classmates and attend a school farther from Schaub’s home. Schaub avows that were the monument removed from Valley High School, she would permit Doe 1 to enroll there. After discovery, the parties filed cross-motions for summary judgment. The District Court held that Appellants lack standing and, in any event, their claim for injunctive relief was moot. The District Court observed that appellate courts require plaintiffs bringing Establishment Clause claims to show “direct, unwelcome contact” with the allegedly offensive display, but noted that the cases tended to concern plaintiffs whose contact with a display was “frequent and regular,” and a necessary result of accessing government services or fulfilling civic obligations. App. 14 (quoting Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1252 (9th Cir. 2007)). As a result, it interpreted these factors as imposing additional elements to show standing, and held that Doe 1 and Schaub “failed to establish that they were forced to come into direct, regular, and unwelcome contact with the Ten Commandments monument.” App. 15 (internal quotation marks omitted). As to Schaub, the District Court found that she had come into contact with the monument just a few times and such exposure was insufficient to confer standing. The District Court also found that she had not shown that her contact was “required” for “necessary matters” or as “part of her regular routine.” App. 16. Furthermore, the District Court read Schaub’s deposition testimony that “it never occur[ed] to [her]” that the monument was wrongful and she 8 “didn’t really think too much about it” when she first saw it to mean that her objections to the monument arose only after FFRF became involved in the controversy, undermining the personal nature of her claims. App. 16. As to FFRF, the District Court noted that its associational standing was contingent on Schaub’s standing and, because she lacked standing, FFRF also lacked standing. As to Doe 1, the District Court found her claim was more “tenuous” than her mother’s because she did not seem to recollect seeing the monument in person or feeling affronted by it. App. 16-17. The District Court also found that Doe 1’s attendance at a different high school was irrelevant to standing because standing must exist at the time a complaint was filed, and her attendance at a different school occurred at a later time. The District Court viewed her enrollment at a different school, however, as mooting the request for injunctive relief because the decision to enroll Doe 1 at another school removed any threat of future injury from alleged exposure to the monument. Schaub, Doe 1, and FFRF appeal. II4 4 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise de novo review over legal conclusions concerning standing and mootness. Perelman v. Perelman, 793 F.3d 368, 373 (3d Cir. 2015) (standing); Ruocchio v. United Transp. Union, Local 60, 181 F.3d 376, 382 (3d Cir. 1999) (mootness). 9 A Standing and mootness are two distinct justiciability doctrines that limit our jurisdiction to cases and controversies in which a plaintiff has a concrete stake. Standing ensures that each plaintiff has “[t]he requisite personal interest . . . at the commencement of the litigation,” while mootness ensures that this interest “continue[s] throughout” the duration of the case. Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (internal quotation marks omitted). To establish constitutional standing, “a plaintiff must The District Court, rather than a jury, resolves factual issues relevant to determining whether a party has standing. See Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 72 (1978) (relying on the district court’s factual findings from its evidentiary hearing concerning standing issues); N.J. Coal. of Rooming & Boarding House Owners v. Mayor & Council of Asbury Park, 152 F.3d 217, 220 (3d Cir. 1998) (remanding to the district court for “further factual development and a new determination by the district court regarding plaintiffs’ standing” because of “insufficient factual findings for us to review its standing determination.”). We review those findings for clear error. Perelman, 793 F.3d at 373. A plaintiff bears the burden of showing standing in the “manner and degree of evidence required at the [particular] stage[ ] of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Thus, “[a]t the summary judgment stage, the plaintiff must produce evidence [of standing] in the form of Fed. R. Civ. P. 56[ ] affidavits or documents . . . .” ACLU-NJ v. Twp. of Wall, 246 F.3d 258, 261 (3d Cir. 2001) (quotations and citations omitted). 10