Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Shepherd, Circuit Judge.
Submitted: February 17, 2011
Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.
The American Civil Liberties Union of Minnesota (ACLU) sued public charter school Tarek ibn Ziyad Academy (TIZA) and other defendants for violations of the Establishment Clause. Parents of students who attend TIZA moved to intervene on behalf of their children, but the district court*fn1 held that the parents did not have standing and alternatively denied their motion as untimely. The parents appeal, and although we conclude that the parents have standing, we affirm the district court's denial of the parents' motion.
TIZA, a public charter school formed under Minnesota Statute section 124D, seeks to provide an alternative educational environment directed at accommodating students with cultural ties to Africa, Asia, and the Middle East. The ACLU contends that the methods TIZA employs to accomplish its objective violate the Establishment Clause of the United States and Minnesota Constitutions. The ACLU filed suit against TIZA on January 21, 2009, alleging that TIZA promotes or prefers the religion of Islam, pointing to, among other things, the suspension of classes for daily and weekly prayer, the serving of food in the school cafeteria in conformity with Islamic dietary restrictions, recognition of religious holidays on the school calendar, dress restrictions in conformity with Islamic rules, the permitting of religious materials being posted in school hallways and classrooms, and the providing of school transportation only after a religious studies program concludes in the afternoon.
On March 5, 2009, fourteen months after the action was commenced, parents of Muslim children who attend TIZA moved to intervene under Federal Rule of Civil Procedure 24, either as a matter of right under 24(a) or permissively under 24(b). The parents asserted that the First Amendment either permits or requires TIZA to provide the accommodations challenged by the ACLU as unconstitutional. The district court denied the parents' motion to intervene, holding that the parents did not have Article III standing because their alleged injuries were hypothetical. The district court further held that even if the parents did have standing, the motion to intervene was untimely. The parents appeal.*fn2
We first address whether the parents have Article III standing. Brown v. Medtronic, Inc., 628 F.3d 451, 455 (8th Cir. 2010) ("Federal courts must address questions of standing before addressing the merits of a case . . . ."); United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 833 (8th Cir. 2009) ("In our circuit, a party seeking to intervene must establish Article III standing in addition to the requirements of Rule 24."). We review the district court's standing determination de novo. Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006).
When a party opposes a motion to intervene on the basis of standing, the prospective intervenor must allege facts showing the familiar elements of Article III standing. Metro. St. Louis Sewer Dist., 569 F.3d at 834; Mausolf v. Babbitt, 85 F.3d 1295, 1301 (8th Cir. 1996). The prospective intervenor "must clearly allege facts showing an injury in fact." Metro. St. Louis Sewer Dist., 569 F.3d at 833-34. The prospective intervenor must also allege facts showing that the "alleged injury is fairly traceable to the defendant's conduct and that a favorable decision will likely redress the injury." Id. at 834. We must construe the motion to intervene in favor of the prospective intervenor, accepting all material allegations as true. Id. The parents have adequately alleged all three prongs of Article III standing.
First, the parents have alleged an injury in fact. An injury in fact means an invasion of a "legally cognizable right," Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir. 2009), that is "concrete, particularized, and either actual or imminent," Metro. St. Louis Sewer Dist., 569 F.3d at 833-34. The parents have identified a legally cognizable right because they contend their children's First Amendment right to the free exercise of religion would be infringed if TIZA discontinued the practices challenged by the ACLU. The ACLU responds that the parents could never be injured by the litigation because either the ACLU's claims will be dismissed, leaving the school practices intact, or the ACLU will prevail, requiring the school practices to be altered or discontinued because they are unconstitutional. Whatever the appeal of this argument, it is directed at the merits, and "although federal standing often turns on the nature and source of the claim asserted, it in no way depends on the merits of the claim." ASARCO, Inc. v. Kadish, 490 U.S. 605, 624 (1989) (internal quotation omitted).
The parents have also alleged facts showing that the injury is imminent. They allege that if the ACLU wins on the merits, they will suffer an injury because TIZA will immediately stop providing them with constitutionally required religious accommodations. See South Dakota v. Ubbelohde, 330 F.3d 1014, 1024-25 (8th Cir. 2003) (holding that prospective intervenors met the imminence requirement when they alleged that an injury would occur upon the success of the plaintiffs' lawsuit).
Second, the parents have alleged an injury fairly traceable to the defendant's conduct by asserting that if TIZA discontinues the practices challenged by the ACLU, their personal religious freedoms will be directly affected. See McGowan v. Maryland, 366 U.S. 420, 429 (1961) (stating that plaintiffs must allege infringement of their own religious freedoms in order to have standing to bring a free exercise claim). The ACLU responds that because the parents and TIZA seek the same outcome in the lawsuit, the parents must connect the alleged injury to the ACLU rather than to TIZA. However, we have previously found intervenor standing in a procedurally analogous case. In Ubbelohde, the Army Corps of Engineers planned to release water from a South Dakota reservoir into the Missouri River in order to maintain downstream river flow during a drought. Ubbelohde, 330 F.3d at 1021. Several states filed suit in federal court seeking an injunction to prevent the Corps from releasing the water. Id. at 1022. Downstream landowners moved to intervene "based upon the fear that the Court's ruling would lead to decreased water flow downstream." Id. at 1024. We held that the landowners had standing to intervene even though their alleged injury-decreased water flow downstream-would be caused by the Corps' actions if the plaintiffs prevailed in the lawsuit. Id. at 1025. Accordingly, when the defendant will be compelled to cause the alleged injury to the intervenor if the plaintiff prevails, the intervenor satisfies the traceability requirement even though the defendant and the intervenor seek the same outcome in the case.
Finally, the parents have shown redressability because the injury alleged-impingement of religious freedom if TIZA stops providing the accommodations challenged by the ACLU-would be redressed by a judicial determination that the policies are permitted under the ...