Voters Oust Dover School Board

Michael MASINTER masinter at
Wed Nov 9 08:44:28 PST 2005

On Wed, 9 Nov 2005 JMHACLJ at wrote:

> I am not searching for conspiracies behind large oaks on dimly lit streets,  
> but what impact would the immediate decision of the board, on their own  
> judgments about intelligent design vs evolution, to eliminate ID instruction  have 
> on the case, in particular, on the award of attorneys fees?  What if  the 
> practice and policy changes and it is not caused by the catalyst of the  
> litigation, but on a change of the political persuasions of the board?
> Jim Henderson
> Senior Counsel

Mootness drives the fee question, not the reason for mootness, since fees
are available only to a prevailing party.  Buckhannon Board and Care Home,
Inc. v. W. Va. Dep't of Health and Human Servicees, 532 U.S. 598 (2001).  
Buckhannon forbids a fee award to a plaintiff absent a judgment (or
perhaps some court order short of a judgment not at issue here) altering
the legal relationship between the parties since absent such an order, the
plaintiff cannot be said to have prevailed.  Thus, Buckhannon held that a
dismmissal for mootness precluded a fee award even if the plaintiffs'
claim was the catalyst for the repeal of the challenged legislative
mandate.  I read Buckhannon to hold that if the school board were to moot
the case before judgment, it would escape fee exposure irrespective of
its reasons for mooting the case.

Whether the school board *could* moot the case is the harder question; as
Ann Althouse already noted, the plaintiffs would likely respond that the
voluntary cessation of illegal conduct generally is insufficient to moot a
claim for injunctive relief.  U.S. v. W. T. Grant Co. 345 U.S. 629 (1953).
To be sure, as in Buckhannon, governmental defendants can moot a claim for
injunctive relief despite the voluntary cessation limitation by repealing
an offending statute or regulation since its repeal eliminates any risk of
the recurrence of its mandated illegal conduct.  The problem for the Dover
School Board is that its challenged conduct is an exercise of
discretionary authority that it remains free to reassert at any time; the
election did not alter its statutory or regulatory authority to reimpose
elements of ID as part of the curriculum.

In short, I don't think the School Board can moot the case.  And like you,
I see no reason to think the posture of its newly elected members is
conspiratorial, or that their refusal to act promptly to try to moot the
case evinces a sham attempt to maintain a case and controversy for the
benefit of plaintiffs' counsel.  In any event, were the goal of the board
to ensure a fee award, it would need do no more than enter into a consent

Michael R. Masinter			3305 College Avenue
Professor of Law			Fort Lauderdale, FL 33314
Nova Southeastern University		(954) 262-6151 (voice)
Shepard Broad Law Center		(954) 262-3835 (fax)
masinter at			Chair, ACLU of Florida Legal Panel

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