United States Court of Appeals Fifth Circuit F I L E D May 7, 2003 In the Charles R. Fulbruge III Clerk United States Court of Appeals for the Fifth Circuit _______________

No. 02-20868 _______________

PRO-LIFE COUGARS AND JEANNE S. TULLOS,

Plaintiffs-Appellees,

VERSUS

UNIVERSITY OF HOUSTON, ET AL.,

Defendants,

DR. ELWYN C. LEE, IN HIS OFFICIAL CAPACITY AS VICE PRESIDENT FOR STUDENT AFFAIRS OF THE UNIVERSITY OF HOUSTON;

DR. WILLIAM F. MUNSON, IN HIS OFFICIAL CAPACITY AS ASSISTANT VICE PRESIDENT FOR STUDENT DEVELOPMENT & DEAN OF STUDENTS UNIVERSITY OF HOUSTON,

Defendants-Appellants.

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Appeals from the United States District Court for the Southern District of Texas m H-02-CV-219 ____________ Before SMITH, DENNIS, and CLEMENT, for All Exhibit in three alternate sites, none of Circuit Judges. which the organization considered acceptable.

PER CURIAM:* Pro-Life Cougars sued Munson, Vice Presi- dent for Student Affairs Dr. Elwyn C. Lee, and University of Houston officials appeal a the university, contending that the policy preliminary injunction, and refusal to dissolve violates the First and Fourteenth Amendments that injunction, prohibiting the enforcement of of the United States Constitution. The district the university’s student expressive activity pol- court preliminarily enjoined university officials icy. Because, during the pendency of this from enforcing the policy so as to impose any appeal, the district court granted summary prior restraint in Butler Plaza. The order judgment for Pro-Life Cougars, we dismiss the stated that the policy delegated to the dean of appeal as moot. students “overly broad, unfettered, and abso- lute discretion to impose prior restraint on I. student expressive activities.” Pro-Life Cougars, a registered student or- ganization at the university, applied for a per- The university adopted a successor policy mit to display a “Justice for All Exhibit.” The banning all student expressive activity from organization requested to display the exhibit in Butler Plaza.2 The district court denied the Butler Plaza, a high-pedestrian traffic area university’s motion to dissolve the preliminary located in the center of the university’s main injunction, finding that the new policy did not campus. The exhibit, which measures approxi- moot the first policy, primarily because the mately fifty by sixty feet, advocates a view- university continued to defend its constitution- point on abortion and related issues. ality. The university appealed the preliminary injunction and refusal to dissolve. Dean of Students William Munson denied the permit after determining the event was Pro-Life Cougars amended its complaint to “potentially disruptive.” Under the universi- add claims arguing that the second policy also ty’s policy on expressive student activity, pro- violates the First Amendment. After denying posed events deemed potentially disruptive by the university’s motion to stay proceedings the dean of students could not be held in But- pending appeal, the district court granted par- ler Plaza.1 Instead, Munson gave Pro-Life tial summary judgment on March 13, 2003, Cougars the option of displaying the Justice declaring the first policy unconstitutional es- sentially for the same reasons stated in the pre- liminary injunction order. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be pub- lished and is not precedent except under the limited 2 circumstances set forth in 5TH CIR. R. 47.5.4. Pro-Life Cougars was still able to display the Justice for All Exhibit in Butler Plaza. In addition 1 The university maintains that all student to enjoining enforcement of the first policy, the groups were denied access to Butler Plaza as an preliminary injunction specifically prevented the interim measure while the student expressive ac- university from denying Pro-Life Cougars access tivity policy was under review. to Butler Plaza.

2 II. Cougar’s claims are the sameSSthe constitu- We have appellate jurisdiction to review a tionality of the first policy. preliminary injunction and the refusal to dis- solve that injunction.

(a)(1). The appeal is DISMISSED for want of jur- Where, however, a decision on the merits is isdiction. We express no view on the merits of rendered during the appeal of a preliminary in- this appeal or any related litigation. junction, the preliminary injunction becomes moot, and we lose jurisdiction.3 In other words, the preliminary injunction merges with the decision on the merits. The defendants “will be able to obtain as broad a review on the merits of the order granting the permanent injunction as they could have obtained on ap- peal from the order granting the preliminary injunction.” La. World Exposition, 746 F.2d at 1038.

Of course, this is not the case where the final judgment does not resolve the issue raised by the appeal of the preliminary injunction. For example, in Stacey G. v. Pasadena Indep. Sch. Dist.,

(5th Cir. 1983), we reviewed a preliminary injunction requiring a school district to pay the interim private school costs of a child who sought the provi- sion of public special education services. The final judgment requiring the school district to provide special education services did not moot the subject of the preliminary injunction.

Here, the issues raised by the preliminary injunction and final disposition of Pro-Life

3 E.g., Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.,

(1999) (“Generally, an appeal from the grant of a preliminary injunction becomes moot when the trial court enters a permanent injunction, because the former merges into the latter.”); La. World Ex- position, Inc. v. Logue,

, 1038 (5th Cir. 1984) (“Once an order granting a permanent injunction is entered, the order granting the prelimi- nary injunction is merged with it, and an appeal is proper only from the order granting the permanent injunction.”).

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