Rosenfeld v. Montgomery County Public Schools , 25 F. App'x 123 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ETHAN ROSENFELD, a minor by his 
next friend Robert Rosenfeld;
ARIELLE ROSENFELD, a minor by her
next friend Robert Rosenfeld,
Plaintiffs-Appellants,
v.
MONTGOMERY COUNTY PUBLIC
SCHOOLS; PAUL W. VANCE, Dr.,
individually and in his official
capacity as Superintendent of
Schools and Member of the Board
of Education; NANCY KING, in her
official capacity as President of the
Board of Education; REGINALD M.  No. 01-1583
FELTON, in his official capacity as
Member of the Board of Education;
PATRICIA O’NEILL, in her official
capacity as Member of the Board of
Education; KERMIT BURNETT, in his
official capacity as Member of the
Board of Education; MONTGOMERY
COUNTY BOARD OF EDUCATION;
SHARON W. COX, in her official
capacity as Member of the Board of
Education; WALTER LANG, in his
official capacity as Member of the
Board of Education,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Benson E. Legg, District Judge.
(CA-98-1793-L)
2 ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS
Argued: October 31, 2001
Decided: December 27, 2001
Before WILLIAMS and TRAXLER, Circuit Judges, and
Malcolm J. HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Affirmed in part, vacated in part, and remanded with instructions by
unpublished per curiam opinion.
COUNSEL
ARGUED: John Willard Montgomery, Washington, D.C., for Appel-
lants. Patricia Ann Brannan, HOGAN & HARTSON, L.L.P., Wash-
ington, D.C., for Appellees. ON BRIEF: Maree F. Sneed, Audrey J.
Anderson, HOGAN & HARTSON, L.L.P., Washington, D.C.; Judith
S. Bresler, REESE & CARNEY, L.L.P., Columbia, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellants Ethan and Arielle Rosenfeld (collectively, the Rosen-
felds) appeal from the district court’s orders dismissing their racial
discrimination claims against Appellees Montgomery County Public
Schools, Montgomery County School Board, and members of the
Montgomery County School Board (collectively, MCPS) for lack of
standing, and sealing certain documents produced during the litigation
ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS 3
of their case below. Finding no error in the district court’s standing
analysis, we affirm the dismissal of the Rosenfelds’ claims on the rea-
soning of the district court. Because we conclude, however, that the
district court erred in its failure to follow the procedures prescribed
in this Circuit for sealing documents, we vacate and remand the dis-
trict court’s sealing order for consideration of the appropriate factors.
I.
A.
The Rosenfelds, students in the Montgomery County public
schools, brought this action by and through their father, Robert
Rosenfeld, in the United States District Court for the District of Mary-
land challenging various procedures and policies they allege are used
by MCPS in the selection of students for participation in "gifted and
talented" programs within the public school system in their county.
They alleged that these policies and procedures discriminate against
students who are not members of "preferred" minority racial groups
by effectively creating different, less stringent selection criteria for
minority students applying to gifted and talented programs and
thereby disadvantage white and Asian students in the competition for
a limited number of program spaces. The Rosenfelds sought injunc-
tive relief against all defendants in their official capacities under the
Equal Protection Clause of the Fourteenth Amendment (Count One),
and against all defendants in their official capacities under Title VI of
the Civil Rights Act, 42 U.S.C.A. § 2000d et seq. (West 1994) (Count
Two).1 Ethan Rosenfeld also sought monetary damages from all
defendants under the Equal Protection Clause of the Fourteenth
Amendment (Count Three)2 and from defendant Dr. Paul Vance in his
personal capacity under 42 U.S.C.A. § 1983 (Count Four).
1
The Rosenfelds named Montgomery County Public Schools, the
Montgomery Board of Education, Dr. Paul Vance individually and in his
official capacity as Superintendent of Schools and a member of the
Board of Education, and all other members of the Montgomery Board of
Education in their official capacities in the Complaint.
2
The district court later found that Ethan Rosenfeld had effectively
amended this Count in his Opposition to the Motion to Dismiss, filed in
response to a motion by MCPS, in which he stated that he also intended
to sue under 42 U.S.C.A. § 1983 (West Supp. 2001).
4 ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS
After discovery, the Rosenfelds and MCPS each filed motions for
summary judgment and memoranda in support of those motions.3 The
district court granted MCPS’s motion on the ground that Ethan and
Arielle lacked standing to challenge the admissions policy of any
MCPS program. The district court found that Arielle lacked standing
because her prospective injury was not imminent enough to meet the
constitutional requirement of injury in fact. The district court found
that Ethan’s claim for injunctive relief was barred because he had
already been accepted into the only program with respect to which he
asserted prospective harm from admissions policies — the Interna-
tional Baccalaureate (IB) program at Richard Montgomery High
School. The Rosenfelds appeal from that order.
The district court entered three orders placing or maintaining docu-
ments under seal during the course of the litigation below. After dis-
covery was commenced, MCPS filed an unopposed motion for an
order to place certain materials under seal, which the district court
granted on July 9, 1999. The district court’s first order sealed infor-
mation the Rosenfelds sought through discovery, providing as fol-
lows:
[C]ounsel for the plaintiffs (including plaintiffs’ attorney,
law firm staff, and any consultant retained for the purposes
of this litigation to whom they may provide the information)
will be prohibited from releasing to any other person any
information produced in discovery reflecting the home
address, home phone number, biography, family, physiol-
ogy, religion, academic achievement, or physical or mental
ability of any student other than the plaintiffs.
The order further provided that any such information submitted to the
court in the course of motions or for other purposes in the action,
including introduction as evidence at trial, would be under seal until
the Court ruled on a motion to keep the information under seal pursu-
ant to Fed. R. Civ. P. 26(c), and that if no such motion was filed
3
Ethan Rosenfeld’s claims for damages were dismissed before the
summary judgment motions were filed. He does not appeal the dismiss-
als and has abandoned all claims for damages at this stage.
ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS 5
within twenty days, it would be presumed there was no objection to
the unsealing of the material.4
Next, the district court ruled, on June 26, 2000, on a motion by
MCPS to maintain under seal certain information covered by the ini-
tial confidentiality order and submitted to the district court in support
of the parties’ summary judgment motions, as well as a section of
MCPS’s summary judgment motion itself. The district court entered
an order on June 27, 2000 maintaining the information and the portion
of MCPS’s summary judgment motion under seal. Finally, on July 17,
2000, the district court entered a third order maintaining two addi-
tional items under seal, namely the Rosenfelds’ Reply Brief in sup-
port of their motion for summary judgment and a second report
prepared by their expert, Dr. Lerner (the first report having been
placed and maintained under seal pursuant to the district court’s prior
orders).
While the parties’ motions for summary judgment were pending
before the district court, the Rosenfelds filed a motion to unseal all
of the documents then under seal in the case. The Rosenfelds argued
in support of their motion that the district court, in considering
whether to maintain or place materials under seal to that point, had
not complied with the Fourth Circuit’s procedural rules that apply
when the materials in question have been submitted to the court for
use in the summary judgment process. The district court granted
MCPS’s motion for summary judgment without ruling on the Rosen-
felds’ motion to unseal materials.
B.
A number of gifted and talented programs are offered within the
Montgomery County public schools at the elementary school, middle
4
Although the district court stated in this order that it would presume
there was "no objection to the unsealing of the sealed material" absent
a motion filed within twenty days pursuant to Fed. R. Civ. P. 26(c), there
is no indication in the record before us either that any such motion was
filed or that the district court took further action with respect to this first
sealing order. (J.A. 63.)
6 ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS
school, and high school levels.5 The Montgomery County Board of
Education has promulgated a system-wide "Policy on Gifted and Tal-
ented Students." The Policy lays out the general procedures and
guidelines under which gifted and talented programs are to be imple-
mented within MCPS, including the general procedures for identifica-
tion of gifted and talented students. The "Purpose" section of that
document states that MCPS’s gifted and talented programs are
designed to meet "the needs of gifted and talented students for differ-
entiated educational programs and/or services beyond those normally
provided by the regular school program . . . ." (J.A. at 327.)
The various gifted and talented programs within the Montgomery
County public schools have distinct standards and criteria for applica-
tion and admission. Differing screening factors are considered in the
identification of students who will participate in these programs,
depending on the specifics of the program in question.
At the time of oral argument, Ethan was a student in the IB pro-
gram at Richard Montgomery High School. Arielle was a student in
the Magnet Program in the Humanities and Communications at East-
ern Middle School (Eastern Magnet). The IB program and Eastern
Magnet are both academically competitive gifted and talented pro-
grams.
II.
We review de novo the district court’s grant of summary judgment
to MCPS on Ethan and Arielle’s claims for injunctive relief. See
Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850
(4th Cir. 2000). To satisfy Article III’s standing requirements, a plain-
tiff must show "(1) it has suffered an ‘injury in fact’ that is (a) con-
crete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action
5
At the elementary school level, four "CENTER" programs for the
highly gifted serve gifted and talented students within MCPS. At the
middle school level, several "magnet" programs are available to gifted
and talented students. And at the high school level, gifted and talented
students may participate in any of a number of programs collectively
known as the "honors" program.
ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS 7
of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision." Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992)).
After considering Arielle’s arguments regarding her standing to
bring this suit, we find no error in the district court’s grant of sum-
mary judgment to MCPS on that ground. Accordingly, we affirm the
district court’s order as to Arielle’s claims on its reasoning. See
Rosenfeld v. Montgomery County Pub. Sch., Civ. No. L-98-1793 (D.
Md. March 28, 2001) (J.A. at 83). We address below certain of Ariel-
le’s arguments on appeal for the sake of completeness.
Arielle argues on appeal that because her claim of discrimination
in the IB program’s admissions procedures could take years to litigate
to conclusion, she must be allowed to proceed with the claim now in
order to have a chance of obtaining effective relief. If she cannot seek
relief now, Arielle argues, her claim may become moot before it is
resolved in the court, as she will apply to and either be accepted or
rejected by the IB program before the litigation is concluded. We do
not find this contention persuasive, as it ignores the availability of
preliminary injunctive relief. Arielle had the option to seek prelimi-
nary injunctive relief below, but did not do so. Two recent cases from
our Circuit, relied on to a significant extent by the Rosenfelds, illus-
trate the availability of such relief in the context of racial discrimina-
tion claims. See Eisenberg v. Montgomery County Pub. Sch., 197 F.3d
123, 133-34 (4th Cir. 1999), cert. denied, 529 U.S. 1019 (2000)
(granting preliminary and final injunctive relief on appeal in a racial
discrimination case against MCPS); Tuttle v. Arlington County Sch.
Bd., 195 F.3d 698, 708 (4th Cir. 1999), cert. dismissed, 529 U.S. 1050(2000) (recognizing the availability and appropriateness of prelimi-
nary and permanent injunctive relief against school board on racial
discrimination claim, but vacating the district court’s injunction as
overbroad).
Nor does Arielle’s contention that preliminary injunctive relief
could not solve the problem of MCPS’s alleged discrimination
advance her claim of standing. She argues that even if she were
granted preliminary injunctive relief, she would likely be admitted or
8 ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS
rejected before her claim was litigated to conclusion, and her claim
thus would be mooted before final resolution. This chain of events,
she alleges, would repeat itself for any student challenging MCPS’s
policies, with the result that no court would ever have occasion to
determine ultimately the validity of MCPS’s gifted and talented
admissions policies. This contention, too, is unpersuasive. It is simply
not the case that a challenge to MCPS’s gifted and talented admis-
sions policies could not be litigated to final resolution before the
plaintiff’s claim is mooted. A student denied admission to a gifted and
talented program through a racially discriminatory admissions process
might still have standing to seek damages,6 facilitating review of the
constitutionality of that process. See, e.g., Johnson v. Bd. of Regents,
263 F.3d 1234, 1237, 1239 (11th Cir. 2001) (affirming award of dam-
ages to students denied admission under racially discriminatory
admissions process implemented by the University of Georgia).
We conclude likewise that Ethan Rosenfeld’s claims seeking
injunctive relief are barred, and the district court properly granted
summary judgment to MCPS on those claims. We affirm this ruling
substantially on the reasoning of the district court, noting in addition
only that Ethan’s claims might appropriately be said to be barred as
moot, rather than for lack of standing. See Rosenfeld v. Montgomery
County Pub. Sch., Civ. No. L-98-1793 (D. Md. March 28, 2001) (J.A.
at 83).
At the outset of this litigation, Ethan’s claim for injunctive relief
related to the IB program’s admissions procedures. Because he has
since been admitted to that program, his claim for injunctive relief
barring application of those procedures to him is now moot. As the
Supreme Court has explained, the standing inquiry is a question of
whether the plaintiff has "the requisite personal interest that must
exist at the commencement of the litigation." Laidlaw, 528 U.S. at
189 (internal quotation omitted). This interest (including the constitu-
tional minimum requirements) must continue to exist at every stage
of review, or the action is moot. Id. Ethan’s claim is moot because the
"personal interest" he claimed initially — prospective damage from
6
Ethan Rosenfeld initially sought damages, but dropped those damage
claims not dismissed on sovereign immunity grounds because he could
not show current or retrospective damage from MCPS’s policies.
ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS 9
the IB program’s admissions policy — disappeared when he was
admitted to that program.
Finally, we note that Ethan asserts on appeal that he plans to apply
to one or more academically competitive internship programs within
Richard Montgomery High School, and that he has standing to chal-
lenge purportedly racially discriminatory admissions policies
employed in the selection of students for those programs. This claim
has no merit. On the record before us, Ethan has failed to demonstrate
even the existence of internship programs within the Montgomery
County public schools for which he is eligible and which employ
selective admissions policies. The one internship program that appar-
ently does have a selective admissions policy, a program offered
through the National Institutes of Health, is a program for which
Ethan is ineligible because he is already a student in a gifted and tal-
ented high school program. Moreover, that program’s admissions pol-
icy does not take race into account in any way. Ethan’s claims for
injunctive relief were thus properly dismissed.
III.
We turn now to the district court’s orders placing or maintaining
documents under seal. When the district court ruled on the parties’
motions for summary judgment, granting summary judgment to
MCPS on the Rosenfelds’ remaining claims, it had pending before it
the Rosenfelds’ motion to unseal the materials sealed pursuant to
those three orders. In their motion, the Rosenfelds asked that the dis-
trict court reconsider its orders sealing documents in light of the con-
siderations prescribed by Fourth Circuit case law. The district court
did not address this motion in its order, which granted summary judg-
ment to MCPS and disposed of the case.7
On appeal, the Rosenfelds assert that the district court’s apparent
failure to follow the procedures established in this circuit’s case law
7
Although none of the district court’s orders sealing documents pur-
ported explicitly to seal those documents permanently, the parties
assume, and we agree, that those orders must be considered to be of con-
tinuing force, especially given the district court’s failure to rule on the
Rosenfelds’ motion to unseal the sealed material. See note 8, infra.
10 ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS
for sealing materials involved in court cases was reversible error. A
district court’s orders sealing documents are reviewed for abuse of
discretion if the right of access to those documents is based in the
common law; such orders are reviewed de novo and must be necessi-
tated by and narrowly tailored to serve a compelling governmental
interest where the right of access is granted by the First Amendment.
See, e.g., In re State-Record Co., 917 F.2d 124, 127 (4th Cir. 1990).
A.
As a threshold contention on the issue of sealing of the documents
below, MCPS contends that affirming the district court’s standing
determination deprives us of jurisdiction to review the district court’s
decision to seal documents.8 It is true that a determination that the
plaintiff lacks standing deprives a court of Article III jurisdiction, and
that where jurisdiction "‘ceases to exist, the only function remaining
to the court is that of announcing the fact and dismissing the cause.’"
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quot-
ing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). That the
Rosenfelds do not have standing to challenge MCPS’s gifted and tal-
ented admissions policies, however, does not deprive them of stand-
ing on appeal to challenge the district court’s sealing orders.
We have held that the press has standing to intervene in actions in
which it is not otherwise a party to seek review of a district court’s
order sealing documents and court records. See Stone v. Univ. of
8
MCPS also argues that we are deprived of jurisdiction to review the
district court’s sealing orders because those orders are not mentioned
explicitly in the notice of appeal. Cf. Fed. R. App. P. 3(c)(1)(B) (stating
that a notice of appeal must "designate the judgment, order, or part
thereof being appealed"). We decline to dismiss the Rosenfelds’ conten-
tion on this ground. The district court’s final order below failed to
address the Rosenfeld’s pending motion to unseal the sealed documents
in this case. The Rosenfelds’ notice of appeal states that they appeal
"from [the] Order entering final judgment against them." Because the
district court’s failure to address the Rosenfelds’ pending motion to
unseal in its final order can only be treated as a denial of that motion, the
Rosenfeld’s notice of appeal from that order serves as notice of appeal
from the denial of their motion, and the issue is properly before us.
ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS 11
Maryland Med. Sys. Corp., 855 F.2d 178, 180-81 (4th Cir. 1988)
(addressing district court’s failure to follow Fourth Circuit sealing
procedures on intervenor Baltimore Sun’s motion for access to sealed
court records); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249,
250-54 (4th Cir. 1988) (addressing district court’s procedural failure
in the context of intervenor Washington Post’s motion to unseal docu-
ments); see also In re Tribune Co., 784 F.2d 1518, 1521 (11th Cir.
1986) (holding that the press has standing to intervene where not oth-
erwise a party to petition for access to court documents and records).
We have likewise recognized standing in news organizations peti-
tioning for writs of mandamus instructing district courts to unseal
documents previously ordered sealed. See In re Time, Inc., 182 F.3d
270, 271-72 (4th Cir. 1999) (addressing motions of press-petitioners
for writ of mandamus compelling district court to unseal documents
in an ongoing criminal proceeding); In re State-Record Co., 917 F.2d
at 126-27 (stating that "[m]andamus is the preferred method [of]
review [for] orders restricting press activity relating to criminal pro-
ceedings . . .") (quoting In re Washington Post Co., 807 F.2d 383, 388
(4th Cir. 1986)).
We see no reason why the standing of a news organization to seek
review of a district court’s sealing order should differ from that of a
party in the Rosenfelds’ position. Cf. Ashcraft v. Conoco, Inc., 218
F.3d 288, 302-03 (4th Cir. 2000) (concluding that a district court’s
sealing order was invalid for failure to comply with Fourth Circuit
procedures; finding it unnecessary to conclude whether the press
enjoys any "special right of access" to sealed material greater than
that a private citizen would enjoy). Indeed, both parties continue to
be bound, as a news organization would be, by the district court’s
sealing orders entered below. The caselaw establishes that our juris-
diction to review a district court’s sealing orders is based not on our
jurisdiction over the subject matter of the underlying claims addressed
by the district court, but on the public right of access, under the com-
mon law or the First Amendment, to judicial documents. It is this
public right of access that gives third party press intervenors standing
to intervene on appeal to seek review of sealing orders of the district
courts. The dismissal of the Rosenfelds’ claims on standing grounds
thus does not deprive this Court of jurisdiction to review the sealing
12 ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS
order below; the Rosenfelds have standing to seek review indepen-
dent of their standing on the underlying claims.
B.
Turning to the merits of the Rosenfelds’ contentions, we must first
determine what standard of review governs our consideration of the
district court’s order. There are two potential sources of a public right
of access to judicial materials — the common law’s presumption of
a right to access and the First Amendment right of access. Rushford,
846 F.2d at 253. The First Amendment right of access, which pro-
vides a stronger presumption in favor of access than the common-law
right, applies to documents submitted in support of summary judment
motions in civil cases. Id. ("[t]he more rigorous First Amendment
standard should also apply to documents filed in connection with a
summary judgment motion in a civil case"). The First Amendment
standard requires a showing that the denial of access is necessitated
by a compelling government interest and is narrowly tailored to serve
that interest in order to justify the sealing of documents. Id.; see also
In re State-Record Co., 917 F.2d at 127. Because the First Amend-
ment provides the right of access here, our review is de novo. In re
State-Record Co., 917 F.2d at 127.
In making the determination whether sealing was appropriate under
the First Amendment standard, the district court was bound to follow
certain procedures prescribed by the caselaw of this circuit. Fourth
Circuit caselaw establishes that there are a number of steps a district
court must take before sealing court records. In Rushford, we stated
the general rule:
First, the district court must give the public adequate notice
that the sealing of documents may be ordered. Second, the
district court must provide interested persons an opportunity
to object to the request before the court makes its decision.
Third, if the district court decides to close a hearing or seal
documents, it must state its reasons on the record, supported
by specific findings. Finally, the court must state its reasons
for rejecting alternatives to closure.
846 F2d at 253-54 (quoting In re Knight Publ’g Co., 743 F.2d 231,
234-35 (4th Cir. 1984)) (internal citations and quotation marks omit-
ROSENFELD v. MONTGOMERY COUNTY PUBLIC SCHOOLS 13
ted); see also Ashcraft, 218 F.3d at 302 (enumerating same require-
ments) (citing Knight).
MCPS asserts that we should find the district court’s reasons for
sealing the documents apparent from the context surrounding its ini-
tial orders sealing and maintaining them under seal. These orders,
asserts MCPS, were entered in response to MCPS’s motions pursuant
to the Family Educational Rights and Privacy Act (FERPA), 20
U.S.C.A. § 1232g. That law, MCPS argues, limits its ability, and
therefore also the court’s, to release personally identifiable informa-
tion contained in educational records. There is no doubt that the dis-
trict court should consider FERPA in making its determination
whether sealing of the documents in question is appropriate under the
applicable First Amendment standard. MCPS’s assertions as to the
district court’s consideration process, however, cannot substitute for
the explicit enumeration, on the record and by the court itself, of that
process as dictated by our precedent.
As there is no indication on the record that the court gave public
notice or an opportunity for interested parties to object and the district
court’s final order makes no mention of the sealed documents, nor of
why they were sealed or why alternatives to leaving them sealed were
rejected, we find that the court did not comply with the procedures
required by our precedent. Because we conclude that the district
court’s final order disposing of the case must be treated as giving con-
tinuing effect to the sealing orders entered previously, we vacate that
order to the extent it thereby ordered documents sealed permanently,
and we remand for reconsideration in light of this opinion.
IV.
For the reasons stated above, the judgment of the district court is
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS.