Petition for Writ of Certiorari — Chandler ex rel. Chandler v. Siegelman

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Cy Supreme Court, U.8.

No . #6 2

99 935 Dit2-1%

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

MICHAEL CHANDLER, individually and as father

and next friend of JESSE CHANDLER,

Petitioners,

—V).——

FORREST H. “FOB” JAMES, JR., in his official capacity as Governor of

the State of Alabama and as President of the State Board of Education,

et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

PAMELA L. SUMNERS ELIZABETH J. HUBERTZ

(Counsel of Record) P.O. Box 370862

LAW OFFICES OF Birmingham, Alabama 35237

PAMELA L. SUMNERS (205) 567-9326

P.O. Box 370862 STEPHEN L. PEVAR

Birmingham, Alabama 35237-0862 ACLU FOUNDATION

(205) 320-0200 } 1888 Sherman Avenue

STEVEN K. GREEN Suite 380

AMERIC.’ NS UNITED FOR SEPARATION Denver, Colorado 80203

OF CHURCH & STATE (303) 839-5752

518 C Street, N.E.

Washington, D.C. 20002

(202) 466-3234

Counsel for Petitioners

3 bot

pre

QUESTIONS PRESENTED FOR REVIEW

1. Absent any evidence that the state has created a

public forum in its schools, does it violate the Establishment

Clause for school officials to permit both students and

nonschool persons to offer group prayer before a captive

audience of K-12 students in classrooms, school-sponsored

assemblies, sporting events and graduation exercises using the

machinery of the state, including compulsory attendance laws,

public address and intercom systems?

2. Did the Eleventh Circuit err in construing the

doctrine of viewpoint neutrality to prohibit a court from

enforcing the Establishment Clause by enjoining school officials

from creating a special platform for prayer in the schools for

both students and nonschool persons?

LIST OF ALL PAETIES TO THE PROCEEDING

Michael Chandler and Jesse Chandler, a minor child, by

and through his next friend, Petitioners/Piaintiffs.

Don Siegelman, present Governor of Alabama, in the

Governor’s official capacity as president of the Alabama State

Board of Education; Forrest H. "Fob" James, Jr., former

Governor of the State of Alabama; William H. Pryor, Attorney

General of the State of Alabama; Alabama State Board of

Education; |Dr. Ed Richardson, in his official capacity as

Superintendent of the State Board of Education; Dr. Stephanie

Bell, in her official capacity as a member of the State Board of

Education; David Byers, in his official capacity as a member of

the State Board of Education; Bradley Byme, in his official

Capacity as a member of the State Board of Education; Mary

Jane Caylor, in her official capacity as a member of the State

Board of Education; Dr. Ethel Hall, in her official capacity as

a member of the Alabama State Board of Education; G.J.

"Dutch" Higginbotham, in his official capacity as a member of

the Alabama State Board of Education; Sandra Ray, in her

official capacity as a member of the State Board of Education;

Mary Etta Bailey, in her official capacity as a member of the

DeKalb County Board of Education; Dot D. Burke, in her

official capacity as a member of the DeKalb County Board of

Education; Greg Buttram, in his official capacity as a member of

the DeKalb County Board of Education; Willard A. Israel,

former member of the DeKalb County Board of Education,

> © |

Tommie Johnson, in his official capacity as a member of the

DeKalb County Board of Education; Richard R. Land, in his

official capacity as Superintendent of the DeKalb County Board

of Education; Weldon Parrish, former Superintendent of the

DeKalb County Board of Education; Jimmy Wilbanks, in his

official capacity as a member of the DeKalb County Board of

Education; Johnny Young, in his official capacity as a member

of the DeKalb County Board of Education.

TABLE OF CONTENTS

CRUTICNE Tt ia ee he ek ct

COOP GR PII foi 5 8 aE BA Rea

CITATION OF OPINIONS AND ORDERS ..................

AGN PU IT ok kn nk he A

I. This Petition Presents Important

First Amendment Questions That Should

Be Settled by this Court ....................

A. The Decision Undermines This

Court’s Precedents About

Prayers Before Captive Student

WI cn Gare che ce cares

B. The Decision Misconstrues This

Court’s Student Free-Speech

ea The Decision Prevents Trial

Courts From Fashioning

Injunctive Relief In

Constitutional Cases .................

I] The Decision of the Eleventh Circuit

Is In Direct Conflict With Decisions of

CONCLUSION

Cir GN ELAS,

A. The State-Action Holding Is

Pa is is ook ESOS Ss |

APPENDIX

Panel Decision in Chandler v. James, 180 F.3d

1254 (11 Cir, July 13, 1999)...............

District Court’s Order on Motion for Partial

Stay of Permanent Injunction, Chandler v.

James, 998 F. Supp. 1255 (M..D. Ala.

December 17, 1997) ............. ccc ee eee

District Court’s Memorandum Opinion and

Order regarding section 16-1-20.3 of the

Alabama Code, Chandler v. James, 958 F.

Supp. 1550 (M.D. Ala. March 12, 1997) ......

District Court’s Permanent Injunction, Chandler

v. James, 985 F. Supp. 1062 (MLD. Ala.

October 29, 1997) ...........0. cece eee eee

District Court’s Supplemental Opinion and

Order, Chandler v. James, 985 F. Supp. 1068

(M..D. Ala. November 12, 1997) ............

District Court’s Memorandum Opinion and

Order, Chandler v. James, 985 F. Supp. 1094

(M.D. Ala. November 12, 1997) ............

» ® & Oo OOO 6 275-0 OR 'S4' P46 oS Ow O64 2-H-S OVE 4 ES

G Eleventh Circuit Order, denying rehearing en

banc (September 29, 1999) ................. Gl

H Constitutional and Statutory Provisions ........ Hl

I Parties’ Joint Motion to Vacate This Court’s

Order and Agreement of Voluntary Cessation of

vii

TABLE OF AUTHORITIES

Cases Pages

Abington Twp. Sch. Dist. v. Schempp,

SPELLS: BOG COOGEE) as Bk is passim

ACLU v. Blackhorse Pike Reg. Bd. of Educ.,

84 F.3d 1471 (3d Cir. 1996)(en banc) ...... 28, 29

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) ....... PRET ee Ore 23

Berger v. Renssalaer Cent. Sch. Corp., 982 F.2d 1160

(7 Cir.), cert. denied, 508 U.S. 911 (1993) .... 29

Bethel Sch. Dist. v. Fraser, 478 U.S. 675

BRED IG Seah ae Re eee ane 19

Bowen v. Roy, 476 U.S. 695 (1985) ................. 22

Collins v. Chandler Unified Sch. Dist.,

644 F.2d 759 (9® Cir. 1981) .............. 27, 29

Cornelius v. NAACP Leg. Def. and Educ. Fund,

Cre Ui PO oS SEE i a 19

County of Allegheny v. ACLU, 492 U.S. 573

CRI rehash k Seed. CRA 18

Doe v. Duncanville Indep. Sch. Dist.,

994 F.2d 160 (5 Cir. 1993) ............. 26, 27

Doe v. Duncanville Indep. Sch. Dist., -

70 F.3d 402 (5® Cir. 1995) ................. 26

Edwards v. Aguillard, 482 U.S. 578 (1987) ~.......... 13

Engel v. Vitale, 370 U.S. 421 (1962) .......... 11, 16, 17

Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) ... 23

Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373

(MR So eres ee. 16, 17

Grayned v. City of Rockford, 408 U.S. 104 (1972) ..... 22

Hazelwood Sch. Dist. v. Kuhlmeier,

MMPS. MGM so, 19, 21

Ingebretsen v. Jackson Pub. Sch. Dist.,

88 F.3d 274 (5" Cir.), cert. denied sub nom.

Moore v. Ingebretsen, 519 U.S. 965

| Bab Sener cary 7 ay ng nw Bm 26, 27,28

Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963

(5* Cir.), cert. denied, 508 U.S. 967 (1992) .. 27, 28

Karen B. v. Treen, 653 F.2d 897 (5® Cir.),

aff'd, 455 U.S. 913 (1982) ............ 12, 27, 28

Lee v. Weisman, 505 U.S. 577 (1992) ............ passim

Lemon v. Kurtzman, 411 U.S. 192 (1973) ............ 24

Madsen v. Women's Health Center,

reves ee a ae ere oe ee 22, 23

People ex rel. McCollum v. Board of Educ..,

Sad US. Bee Cee ca el passim

Perry Educ. Ass'n v. Perry Local Educators’ Ass'n,

460 U.S. 37, 47 GIGSS) . wees 19

Santa Fe Indep. Sch. Dist. v. Doe,

168 F.3d 806 (5* Cir. 1999), cert. granted,

68 U.S.L.W. 3321 (U.S. Nov. 15, 1999)

(pk Se passim

Stein v. Oshinsky, 348 F.2d 999 (2d Cir.),

cert. denied, 382 U.S. 957 (1965) ............ 28

Tinker v. Des Moines Indep. Sch. Dist.,

Se ae Se

393 U.S. 503 (1969) ............00.. 20, 21, 22

Wallace v. Jaffree, 472 U.S. 38 (1985) .............. 11

Constitutional and Statutory Authorities

Ey es WN Bras do i A eo passim

U.S. Const., Amend. 14 -.........0.........05.. passim

TUOE CHU bi i oa 1

Ala. Code § 16-1-20.3 (1975 & Supp. 1993) ....... 2, 3, 6

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CITATIONS OF OPINIONS AND ORDERS

The order of the United States Circuit Court of Appeals

for the Eleventh Circuit denying the petition for rehearing is

reprinted as Appendix G to the petition. The opinion of the

Eleventh Circuit is reported at 180 F.3d 1254 (11 Cir. 1999)

and is reprinted as Appendix A. The opinion of the district

court granting in part and denying in part the motion for partial

stay of the injunction is reported at 998 F. Supp. 1255 (MLD.

Ala. 1997) and is reprinted as Appendix B. The opinion of the

district court regarding the constitutionality of Alabama’s

school-prayer statute is reported at 958 F. Supp. 1550 (M.D.

Ala. 1997) and is reprinted as Appendix C. The district court’s

permanent injunction is reported at 985 F. Supp. 1062 (M.D.

Ala. 1997) and is reprinted as Appendix D. The opinions of the

district court relating to the issuance of the injunction are

reported at 985 F. Supp. 1068 (M.D. Ala. 1997) and 985 F.

Supp. 1094 (M.D. Ala. 1997) and are reprinted as Appendix E

and Appendix F.

BASIS FOR JURISDICTION

The court of appeals entered its judgment on July 13,

1999. The petition for rehearing was denied on September 29,

1999. This Court has jurisdiction pursuant to 28 U.S.C. §

1254(1).

CONSTITUTIONAL PROVISIONS and STATUTES

The First Amendment to the United States Constitution

provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof,

or abridging the freedom of speech, or of the press; or the right

of the people peaceably to assemble and to petition the

Government for a redress of grievances.”

Section 1 of the Fourteenth Amendment to the United

States Constitution provides: “All persons born or naturalized

in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shail

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.”

The full text of Alabama Code § 16-1-20.3 (1975 &

1993 Supp.) is set forth in Appendix H.

STATEMENT OF THE CASE

In 1993, Alabama enacted its fourth school-prayer

statute within a 15-year period, Alabama Code Section 16-1-

20.3. The operative portion of the statute provides:

On public school, other public, or other

property, non-sectarian, non-proselytizing

student-initiated voluntary prayer, invocations

and/or benedictions, shall be permitted during

compulsory or non-compulsory school-related

student assemblies, school-related student

sporting events, school-related graduation or

commencement ceremonies, and other school-

related student events.

Ala. Code 16-1-20.3(b) (1975 & 1993 Supp).

On February i, 1996, Michael Chandler and his son

Jesse sued, challenging the constitutionality of the statute both

facially and as applied in DeKalb County, Alabama where the

family has lived and worked and where Jesse attends one of

eight K-12 schools. Among other things, the Chandlers alleged

and the trial court concluded, in factual findings that were not

challenged on appeal, that the following religious activities had

taken place in DeKalb County schools:

®Christian prayers in the classrooms as part of

orchestrated student activity. In a number of cases in DeKalb

County, students led their peers in corporate prayers or religious

devotionals in the classroom or over the intercom during the

school day. For example, the teacher would select a student to

lead the prayer, or the teacher would give a signal and the

students would pray in unison. In Jesse Chandler’s homeroom,

his teacher selected students to offer prayers or Bible readings

and did so herself in the absence of student “volunteers.”

Students also prayed over the school-intercom system during

homeroom. There is no evidence that school officials made the

school intercoms available for other speech unrelated to school

business or allowed school clubs to conduct club activities over

the intercom system. :

©Christian prayers at compulsory school assemblies.

During the school day, DeKalb County public schools hold

assemblies where attendance is required or where students must

choose between attendance or study hall. School officials

control the assemblies and decide the content of the programs.

At these assemblies, students or clergy have led prayers and

religious devotionals. For example, assemblies for programs

such as D.A.R_E. have featured prayer. Although this drug-

awareness program is not compulsory, all fifth-graders,

including Jesse Chandler, participated. Both before and after

suit, Jesse Chandler attended assemblies where prayers or

devotionals were offered.

©Christian prayers over the loudspeaker at high

school football games offered by students or clergy. - For

several years prior to suit, Christian prayers were recited by

students or clergy over the loudspeaker at DeKalb County

football games. DeKalb County stipulated to control over

access to the public-address system at home football games.

There is no evidence that DeKalb County ever set aside use of

the system for student expression or otherwise established a

public forum for the discussion of other topics or viewpoints.

There is no evidence that prayers from non-Christian religious

traditions were offered or that any other type of speech, other

than announcements related to the games, was broadcast.

Specimen prayers before and after suit were videotaped and

entered into evidence. While attendance at football games is not

a curricular requirement, most students attend, including

students not yet in high school. The Chandlers have attended

such football games.

©Christian prayers at high-school graduation

ceremonies. For several years prior to suit, graduation prayers,

identified as “invocations” or “benedictions,” were led by

students or clergy. They were listed on preprinted programs

separately from valedictory or salutatory addresses, which were

presented independently. As stipulated, school officials plan the

ceremonies and control the form and content of the graduation

programs. There have been no prayers from non-Christian

religious traditions, and no speech besides prayer has ever been

offered during the prayer segments. Several prayers were

videotaped and entered into evidence, and each invokes the

name of Jesus. After the suit was filed, the word “invocation”

was dropped from the preprinted program at Sylvania School

and the words “Class Historian” inserted. For three years in a

row, the class historian led the audience in prayer, just as had

taken place during the “invocation” prior to suit. In addition to

Sylvania, other schools continued to permit prayer after suit was

filed.

©Other Christian religious activities in the DeKalb

County schools. In addition to the above activities conducted

pursuant to the statute, DeKalb County officials permitted

ministers and evangelists to speak at school events such as

mandatory drug- or AIDS-awareness assemblies and to pray,

proselytize, make extended religious remarks, and invite

students to church functions. At one school-related event that

Jesse Chandler was compelled to attend as a member of the

band, two ministers prayed and invited the crowd of parents and

students to church. School officials also allowed nonschool

persons to enter classrooms to make presentations and distribute

Gideon Bibles. DeKalb offered no evidence suggesting the

creation of a limited public forum for any distributions by

nonschool persons and in fact acknowledged that school

officials screened distributions for content deemed appropriate

for the school environment.

After the Chandlers filed for preliminary injunction, the

defendants agreed to voluntarily cease the activities claimed to

be unconstitutional pending the court’s ultimate ruling. The

Chandlers agreed not to pursue a preliminary injunction hearing

based on this promise but preserved their right to seek injunctive

relief. This agreement, styled a Joint Motion, was signed by

counsel for all parties and was filed with the Court.’ Shortly

after signing the Joint Motion, DeKalb County violated the

agreement by sponsoring prayers at graduations. The Chandlers

submitted evidence of ongoing violations, documenting prayers

at school-sponsored events.

On March 12, 1997, the trial court declared section 16-

1-20.3 facially unconstitutional. Despite the declaratory

'The Joint Motion and its Exhibit A were patterned on “Religion in the

Public Schools: A Joint Statement of Current Law” and are reprinted as

Appendix I to this petition.

judgment, DeKalb County continued to violate the Joint Motion

and to engage in activities which, according to the March

opinion, violated the First Amendment. For example, even

though the Joint Motion specified that school officials would

intercede to stop religious harassment of students, they did not

do so. The trial court found that DeKalb County had permitted

classmates’ harassment of Jesse Chandler for a period of

months. Between October 1996 and April 1997, approximately

175 of 200 students stood and prayed aloud when Jesse entered

the lunchroom, on a signal of “One, two, three, pray.” Despite

complaints from the Chandler family, both the school principal

and the superintendent refused to stop the conduct. Jesse was

forced to take his lunch alone in a classroom.

Based on unconiroverted evidence of ongoing violations

of both the Joint Motion and the Establishment Clause, the

Chandlers sought permanent injunctive relief. On October 23,

1997, DeKalb County filed a pleading stating that it wanted

clarification on the question of whether “a federal judge has the

authority to tell school officials and administrators in DeKalb

County how to handle the issue of school prayer” and “if a

federal judge can do whatever he wants whenever he wants to.”

(App. E12.) On October 29, 1997, the trial court entered the

permanent injunction the plaintiffs sought. The trial court

appointed a compliance monitor in light of the defendants’

history of noncompliance with the law, the Joint Motion, and

\the March order.

The injunction explained in detail that school-sponsored

religious activities, whether purporting to be student-initiated or

not, were constitutionally impermissible. The district court

repeatedly stressed that its injunction reached only "school-

organized" or "officially sanctioned" prayer -- that is, prayer

Occurring in situations where school officials actively control the

setting and students cannot realistically express opposing views

or offer other unsanctioned speech. The injunction explicitly

protected students’ rights under the federal Equal Access Act

(for grades 7-12). (App. D4-D5, D9.) It also allowed students

to distribute religious literature to the same extent that they

could distribute other literature,” to express religious beliefs in

school assignments, to wear religious clothing and jewelry, to

attempt to persuade their peers on religious issues, and to

quietly engage in religious activity during noninstructional time.

(/d.)

The injunction was supported by extensive factual

findings detailing numerous and diverse occasions on which

religious activities took place at school-related, school

controlled events. (See App. E19-30, E38-46, E51-55, E57-63.)

The defendants asked the trial court to stay enforcement

of portions of the injunction pending appeal, posing a number

?The trial court allowed DeKalb County to craft its own policy for

distributions of written materials by nonstudents, with the sole directive

that the policy be neutral and uniform in application to all subject matters.

DeKalb chose a policy closing its schools to all political, commercial,

promotional, and religious distributions by nonstudents.

of hypothetical scenarios premised on overbreadth and a

supposed chilling effect. The trial court denied the motion in a

lengthy opinion rejecting defendants’ construction of the

injunction except for 12 words regarding noisy or disruptive

prayer that the trial court agreed were imprecisely worded. The

motion for stay was not renewed in the Eleventh Circuit.

The defendants’ appealed only those provisions of the

injunction prohibiting school officials from “permitting”

students’ and nonschool persons’ religious exercises at “school-

sponsored” or “officially sanctioned” activities. They did not

appeal those provisions prohibiting school officials from

offering prayers. Moreover, the defendants did not challenge a

single factual finding on appeal.

The Eleventh Circuit decision was issued on July 13,

1999. In vacating the injunction, the appeals court held that

there is no state action when a student or a nonschool “other”

* Alabama Governor Forrest H. “Fob” James, Jr. raised only one issue

on appeal, arguing that the Bill of Rights does not apply to the state of

Alabama.

‘ The Eleventh Circuit explained that its use of the word “student”

throughout the opinion should be understood to include all

“nongovernmental private parties.” (App. A6 at n.6.) It held that “students

or other private parties” have a First Amendment right to pray at school-

related events. (App. A22. See also App. A25.) In DeKalb County, the

and evangelists. (See App. E27, E43, E60.)

prays as part of a school-controlled event. It further held that if

school officials fail to permit prayers by students and nonschool

“others” during school-sponsored events the officials control,

the officials evince unconstitutional hostility toward religion and

practice “viewpoint discrimination.” Although the panel found

fault with only pieces of the injunction — specifically, the trial

court’s use of the word “permit” with regard to the speech oi

students and nonschool others — it vacated the entire injunction.

~ In addition, the opinion was filled with language complaining

about efforts to “cleanse” religion from the public schools.

(See, e.g., App. Al5 (“‘Cleansing’ our public schools of all

religious expression, however, inevitably results in the

‘establishment’ of disbelief — atheism - as the State’s

religion.”).)

The Chandlers petitioned for rehearing en banc on

August 8, 1999. Their petition was denied September 29, 1999.

This petition timely follows.

REASONS FOR GRANTING THE WRIT

This Petition Presents Important First Amendment

Questions That Should Be Settled By This Court

For over 50 years, this Court’s school-prayer holdings

have consistently reaffirmed the same basic rules: public school

officials may not promote or endorse a particular religion or

religion generally, nor may they direct or encourage student

participation in religious activities. Wallace v. Jaffree, 472 U.S.

38 (1985); Abington Twp. Sch. Dist. v. Schempp, 374 U.S. 203

(1963); Engel v. Vitale, 370 U.S. 421 (1962). Likewise, school

officials may not turn over classrooms and other school-

controlled events to outside individuals to engage captive

student audiences in prayer, religious instruction, or other

devotional activity. Lee v. Weisman, 505 U.S. 577 (1992);

People ex rel. McCollum v. Board of Educ., 333 U.S. 203

(1948).

The Eleventh Circuit decision is irreconcilable with these

holdings and blurs the careful distinctions this Court has drawn

among school-controlled expression, individual private

expression, and expressive rights in public fora. In misplaced

reliance on free-speech doctrine, the decision allows corporate

sectarian prayers and public religious activity in classrooms and

as part of school-controlled events before captive audiences of

K-12 students.

More specifically, the Eleventh Circuit’s decision

undermines this Court's school-prayer precedents by requiring

schools to permit students and nonschool persons to engage

unwilling students in religious activity as part of school-

controlled events. It misconstrues this Court’s First Amendment

precedents by holding that students and nonschool persons have

a virtually unfettered right to religious expression in the public

schools, even in the absence of any indication that the DeKalb

County schools have created a forum or that nonreligious

speech is welcome or permitted on an indiscriminate basis.

Finally, the decision is inconsistent with this Court's precedents

governing injunctions by holding that an injunction discriminates

on the basis of viewpoint if it names the subject matter on which

it operates. This departure from settled law, moreover,

occurred in the course of reviewing an injunction that remedied

applications of a school-prayer statute that was ruled facially

unconstitutional.

Because issues involving school prayer remain highly

controversial and implicate core First Amendment values, this

case presents constitutional issues of great importance that

should be resolved by this Court.

A. The Decision Undermines This Court’s Precedents About

Prayers Before Captive Student Audiences

The Eleventh Circuit’s decision commands school

officials to permit the very type of religious activity that this

Court has forbidden: audible prayer and religious activity in the

classroom;" prayer and devotional speech over school public-

address systems;'” and prayer and devotional speech by students

and nonschool persons at school-controlled events, including

'' See Karen B. v. Treen, 653 F.2d 897 (5* Cir.), aff'd, 455 U.S. 913

(1982); McCollum, 333 U.S. 203.

'2 See Schempp, 374 U.S. 203.

assemblies, sporting events and graduation ceremonies.”

According to the Eleventh Circuit, as long as such prayer is not

conducted or commanded by school officials, it must be

permitted. Few holdings could be in greater conflict with this

Court’s First Amendment jurisprudence.

The Eleventh Circuit disregards several principles which

undergird this Court’s entire school-prayer lexicon. As this -

Court has frequently observed, “there are heightened concerns

with protecting freedom of conscience from subtle coercive

pressure in the elementary and secondary schools.” Lee, 505

U.S. at 592. See also Edwards v. Aguillard, 482 U.S. 578, 584

(1987); Schempp, 374 U.S. at 307 (Goldberg, J., concurring).

This Court recognizes that the public schools exercise

tremendous control and influence over schoolchildren who are

highly impressionable and subject to peer pressure, even when

the school-controlled ‘event is “voluntary.” See Lee, 505 U.S. at

593; Edwards, 482 U.S. at 584; McCollum, 333 U.S. at 227

(Frankfurter, J., concurring). This Court also recognizes that

public school children have limited freedoms due to compulsory

attendance requirements and are usually unable to absent

themselves from prayer and other religious activity they or their

parents may find objectionable. Schempp, 374 U.S. at 223;

Edwards, 482 U.S. at 584. Finally, this Court “recognize{s],

among other things, that prayer exercises carry a particular risk

'9 See Lee, 505 U.S. 577.

‘14

of indirect coercion.” Lee, 505 U.S. at 592.

The Eleventh Circuit, however, devalued all these

principles, apparently finding these jurisprudential facts

unwelcome in its analysis."* It ignored this Court’s concern with

captive student audiences, particularly the mghts of

nonadherents of the speaker’s religion. Compare App. A20

(“[t]hose who do not espouse a speaker’s religious belief are

free not to listen, and to express their disagreement by not

participating in any way”) with Lee, 505 U.S. at 593 (“It is of

little comfort to a dissenter . . . to be told that . . . the act of

standing or remaining in silence signifies mere respect, rather

than participation.”). Under the rubric of protected private

speech, the Eleventh Circuit subordinated the rights of captive

audiences of K-12 school children to the putative free-speech

rights of their peers and even adult "others" to lead corporate

prayer in the classroom, over the school intercom, over the

microphone at assemblies, at sporting events, and at

graduations. Even if the prayer and religious exercises were

purely student-initiated, however, there is no constitutional right

to deliver them over a school intercom to K-12 students as part

of school-controlled events.

The Eleventh Circuit declined to follow this Court’s lead

‘4 The Eleventh Circuit also brushed past the equally unwelcome fact

that this case involves official promotion of and favoritism toward religious

speech — rather than pure student-initiated prayer that has no risk of

identification with the state.

by taking into account the confined circumstances in which

public school children find themselves and the use of school

facilities and audiences to promote religion. Rather than

focusing on the use of the machinery of the state — in the form

of mandatory attendance laws, school-sponsored - events,

classrooms, microphones, and intercoms to convey religious

messages — it focused on the identity of the speaker and the

proselytizing content of the speech. It concluded that religious

speech by students and nonschcol persons, even when part of a

school-sponsored event,’’ is “private” and not subject to

regulation by school officials or courts. Accordingly, this

“private” prayer not only may, but must, be permitted in

classrooms and at school events. Why? According to the

Eleventh Circuit, no state action is implicated in such speech or

expression, no matter how much control the school exercises

over the setting.

'S No one — including the Chandlers and the trial court — has ever

contested the right of students to engage in fruly private prayers, i.e.,

praying before a test or saying a private grace before tais in the

lunchroom. The injunction forbid (and the Eleventh Circuit directed) school

officials to permit the praying of audible, corporate prayers that become

part of the school-sponsored event at issue. (Compare App. A21-A22 with

App. D4-7.) The type of prayers reached by the injunction would include

a student or member of the clergy using the school microphone and saying

to a captive audience, “Let us pray,” but not a group of students praying

among themselves in the stands when all are free to move around. 0

App. C23-26; App. B69-71, B87-91.)

The Eleventh Circuit opinion included a caveat to its

sweeping state-action conclusion: students and nonschool

persons may not offer proselytizing prayer using the “machinery

of the state as a vehicle for converting [the speakers’]

audience.” In that single context, the Eleventh Circuit

acknowledged that “[p]roselytizing speech is inherently coercive

and the Constitution prohibits it from the government’s pulpit.”

(App. A25-26.) This concession is surely true, but it is also far

too limited a view of the Establishment Clause. As this Court

has repeatedly noted, endorsement, not indoctrination, is what

counts for Establishment Clause purposes. Grand Rapids Sch.

Dist. v. Ball, 473 U.S. 373, 389-91 (1984); Schempp, 374 U.S.

at 264, 282-86 (Brennan, J., concurring). In other words, the

very use of the “government’s pulpit” is often what makes an

Establishment Clause violation, regardless of whether the goal

of the prayer is to win converts. Notably, the prayers struck

down in Enge/ and Lee were decidedly nonproselytizing (as well

as nonsectarian), and they were offered by someone other than

a school official.

The Eleventh Circuit also erred by focusing too narrowly

on whether students act as “surrogates” for the state when

praying in school. To be sure, surrogacy factors in this case,

with teachers choosing students to pray and principals

employing such devices as a “historian’s address” as a substitute

for clergy-led prayer. But restricting state action to surrogacy,

while it aids in a subterfuge inquiry, does not answer the

essential question of whether prayer in the context of a school-

sponsored event would be taken by an impressionable

schoolchild as an endorsement of religion. Nor does it assuage

the affront to the conscience of the dissenter in the school

milieu. These are the questions that have mattered to this

Court, from Engel and Schempp to Ball and Lee. Endorsement

and captive audience, not a formalistic notion of state action or

proselytism, have been this Court’s polestars for decades.

The Eleventh Circuit disregarded this Court’s

endorsement holdings and gave no consideration to the ways in

which permitting prayer and ruiigious activity lends the state’s

imprimatur to religion. After all, when governmental officials

endorse religion, the state action generally is confined to

providing the platform for the speech. As Justice Souter has

noted, truly “private” prayer neither seeks nor requires a

microphone and an audience. Because students “have no need

for the machinery of the State to affirm their beliefs, the

government’s sponsorship of prayer . . . is most reasonably

understood as an official endorsement of religion.” Lee, 505

U.S. at 630-31 (Souter, J., concurring). It is for this reason that

schools may not “permit” their machinery to be used to sponsor

prayer.

This is not a novel proposition. Since the 1940s, this

Court has made it clear that the state may not “permit” its

facilities to be used for promoting religion, and it has given no

quarter to the nonschool “others” the Eleventh Circuit generally

exempts from the strictures of the Establishment Clause. In

McCollum, the school district merely “permitted” private

religious teachers to use public school classrooms and have

access to students. Even though the religious teachers were

technically private actors, this Court held that the Establishment

Clause applied. 333 U.S. at 205, 209.

The Eleventh Circuit, subject to qualifications that are

inconsistent with this Court’s authorities and which do not

address fundamental Establishment Clause concerns, proscribes

only prayer led by school officials. But “the Establishment

Clause does not limit only the religious content of the

government’s own communications .... Indeed the very concept

of endorsement conveys the sense of promoting someone else’s

message.” County of Allegheny v. ACLU, 492 U.S. 573, 600-

01 (1989). See also Lee, 505 U.S. at 592 (secondary-school

students are likely to perceive school-sponsored religious

exercises as an “attempt to employ the machinery of the state to

enforce a religious orthodoxy”). The Eleventh Circuit’s

cramped view of the state involvement necessary to trigger the

Establishment Clause conflicts with this Court’s precedents and

erodes fundamental Establishment Clause values.

B. The Decision Misconstrues This Court’s Student Free-

Speech Holdings

Just as it does with this Court’s school-prayer

precedents, the Eleventh Circuit misconstrues this Court’s free-

speech holdings. Without citing apposite authority, it reached

the conclusion that students and nonschool persons have

expansive expressive rights to engage in religious speech at

school-controlled events.

The reason for this conclusion appears to be the

Eleventh Circuit’s general notion that schools and school-

sponsored activities are fora for virtually unfettered expression

by students and nonschool persons."* This notion, however, has

no support in the record or in this Court’s precedents.

This Court has held that school facilities and functions

may be deemed to be public fora only if school officials have

deliberately opened them for public discourse (necessarily a

factual inquiry). Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.

260, 267 (1988); Cornelius v. NAACP Leg. Def. and Educ.

Fund, 473 U.S. 788, 800-03 (1985); Bethel Sch. Dist. v. Fraser,

478 U.S.-675, 685 (1986); Perry Educ. Ass'n v. Perry Local

Educators’ Ass'n, 460 U.S. 37, 47 (1983). Outside of those

situations where school officials have expressly set aside school

facilities or functions for “indiscriminate use” and discourse,

“then no public forum has been created.” Hazelwood, 484 U.S.

at 267.

Not only is there no evidence that DeKalb County ever

opened its classrooms, assemblies, graduation ceremonies, and

sporting events for indiscriminate use by the general public, but

the trial court’s uncontested factual findings reflect the opposite

— that DeKalb County created platforms for religious speech

solely, which were put to that use by students and clerg.

Despite the facts, the Eleventh Circuit opened the door that

'6 See generally App. A25 (summarily invoking selected forum cases).

DeKalb did not, and declared that all persons have a First

Amendment right to pray at its school-controlled events.

The Elevenih Circuit seems to have relied for its decision

on Tinker v. Des Moines Independent School District, 393 U.S.

503 (1969). It wrote, “Students do not shed their constitutional

rights . . . at the schoolhouse gate.” (App. Al6, quoting Tinker,

393 U.S. at 506). It also wrote, “Religious speech by students

does not become forbidden ‘state action’ the moment the

students walk through the schoolhouse door.” (App. A16-17.)

The Chandlers have never contended for such

propositions, however. What they contest is religious speech at

school-controlled events in front of captive student audiences.

Deducing that “private” religious speech can never violate the

Establishment Clause is faulty. It devolves from the conclusion

(derived in a factual vacuum) that students simply are not state

actors, and a concomitant disregard of endorsement principles.

(App. A8-13.) Any characterization of the injunction as hostile

to Tinker rights or to religious expression is seriously misguided.

In fact, the injunction the Eleventh Circuit reviewed, far

from demanding that students “shed” their rights, is extremely

respectful of them. Because the irial court recognized that

students have preexistent First Amendment rights to private

expression, the injunction explicitly states that it does not

proscribe students’ rights to private prayer and religious

activity.” (See App. D4-9.)

'’ The trial court emphasized this point with all capital letters, just as

it emphasized by italics and underlining that its injunction reached only

Tinker in fact should have served as a reason to affirm

the injunction, not to vacate it. The trial court did not wander

near reserved student rights, as the injunction makes clear in its

several clarifications of what it does not proscribe. The

injunction operates only on school-sponsored or officially

sanctioned speech, where Jinker is not operable. Tinker rights

subsist in the genre of private speech, not officially sanctioned

speech that tends to “impinge on the rights of other students”

who wish to be free from indirect religious coercion. 393 U.S.

at 509.'* This distinction was captured by the district court and

was apparently overlooked on appeal.

Finally, of course, nothing in 7inker suggests that

nonschool persons have any right to self-expression in the public

schools.’

“school-sponsored” or “officially sanctioned” religious activities. (See

App. D4-9.)

'8 The students in Tinker sought to wear black armbands in silent

protest of the Vietnam War. They did not seek to use the machinery of

the state to broadcast their message to a captive audience, obviating the

risk that the state would be seen as endorsing or adopting the message of

the student protestors. Indeed, as this Court has observed, the rights

protected under 7inker are qualitatively different from the interest in

expressing oneself in conjunction with school-controlled activities, a

distinction this Court characterized as that between “speech that is

sponsored by the school and speech that is not.” Hazelwood, 484 U.S. at

270-71, n3.

' It bears repeating that th~ Eleventh Circuit’s decision permits any

speaker, not only a student, to wring expressive benefits from the

In this case, the issue is not whether students have

Tinker rights, but whether the machinery of the state may be

used by students and nonschool persons who wish to pray

publicly in school, notwithstanding the resulting appearance of

endorsement and its impact on impressionable students. Tinker

cannot answer this question. Nor, on these facts, can public-

forum analysis. This case must be resolved as the district court

resolved it: under the Establishment Clause.

C. The Decision Prevents Trial Courts From Fashioning

Injunctive Relief In Constitutional Cases

Finally, by holding that the district court’s efforts to

prevent recurrence of specific constitutional violations amounts

to prohibited viewpoint discrimination, the Eleventh Circuit

hamstrings the ability of trial courts to redress these violations.

Indeed, the holding renders the entire function of injunctions

meaningless. Because injunctions are the standard remedy in

most constitutional cases, the decision raises a highly important

issue which warrants correction.

In Madsen v. Women's Health Center, 512 U.S. 753

(1994), this Court rejected the proposition that restricting

speech in order to achieve the remedial objectives of an

injunction results in "viewpoint discrimination" merely because

government by demanding to use the machinery of the state to broadcast

his or her message, regardless of Establishment Clause concerns. This

Court has never subscribed to this view. Compare App. A22 with Bowen

v. Roy, 476 U.S. 693, 699-700 (1985). See also Grayned v. City of

Rockford, 408 U.S. 104, 117-18 (1972).

the particular speech that is the subject of the remedy is

addressed in the injunction. 512 U.S. at 762-63.” In fact, as this

Court has held, injunctions are to be construed against the

factual circumstances that generated them. Franks v. Bowman

Transp. Co., 424 U.S. 747, 770-71 (1976) (quoting Albemarle

Paper Co. v. Moody), 422 U.S. 405, 421-22 (1975)).

But here the Eleventh Circuit has simply ignored

undisputed factual findings, and then substituted a theory in their

place, in much the same way it has judicially declared a public -

forum without regard to contrary facts. The record establishes

that prayers (and only prayers) routinely took place as part of

school-sponsored events in DeKalb County, pursuant to a

statute that required DeKalb to permit those prayers (and only

prayers). By enjoining DeKalb County from permitting those

prayers, the trial court did no more than restore the status quo.

And, just as it was not “viewpoint discrimination” in Madsen, it

is not viewpoint discrimination to remedy an Establishment

Clause violation and remove religious speech from its special,

favored position, returning it to the same status enjoyed by all

other speech.

Nor does it make any difference that this case involves

the Establishment Clause, rather than a commercial transaction

or some other statutory or constitutional provision. Indeed, this

® Madsen arose in the context of a public forum that does not exist here

or in the public schools generally. Nonetheless, its holding on viewpoint

discrimination is applicable here.

Court has rejected the proposition that injunctions operating on

establishments of religion are to be construed any differently

than other injunctions. Lemon v. Kurtzman, 411 U.S. 192, 200-

01 (1973). The Eleventh Circuit’s holding undermines these

precedents and hampers attempts to fashion specific relief for

constitutional violations involving First Amendment claims.

All of these substantial questions, involving matters of

great public importance and affecting interpretations of Court

precedent, require this Court’s attention and correction.

Il.

The Decision of the Eleventh Circuit Is in Direct Conflict

With Decisions of Other Circuits

Not only is the Eleventh Circuit’s opinion inconsistent

with this Court’s precedents, but it also conflicts with decisions

of other circuits.

Petitioners are aware that this Court has granted

certiorari to review the constitutionality of student-initiated

prayer at football games in a case that reached the opposite

result the Eleventh Circuit reached. See Santa Fe Indep. Sch.

Dist. v. Doe, 168 F.3d 806 (5 Cir.), cert. granted, 68 U.S.L.W.

3321 (U.S. Nov. 15, 1999) (No. 99-62). Even if this Court

resolves the question of student-led prayers outside of

_ instructional settings or outside of the school day in Santa Fe’', -

2\ Santa Fe does not present “school day” questions on its facts, whereas

Chandler does.

the resolution of this narrow question will not resolve the

conflict presented by Chandler. While the Eleventh Circuit

decision conflicts with Santa Fe by directing school officials to

permit students to lead prayers at football games and other

athletic events, the Eleventh Circuit ventures much further than

any court ever has in requiring school officials to permit prayers

by nonschool persons and also invades the classroom and other

school-day events. Compare Santa Fe, 168 F.3d at 817

(expressing disapproval of permitting “fire-and-brimstone

sermonettes” by religious representatives even if invited by

students) with A22, A25. Thus, the pendency of Santa Fe does

not militate against granting certiorari here.

The Eleventh Circuit’s decision that there is generally no

state action in speech that is not initiated by school officials

conflicts with the law of other circuits (including on the question

of “permitting” prayer at school-sponsored events); the

conclusion that free-speech rights justify Establishment Clause

violations is contrary to the decisions of other circuits; and the

holding that school officials create a limited public forum by

permitting only religious speech conflicts with the decisions of

other circuits. And, finally, the practical effect of the Eleventh

Circuit’s holding conflicts with decisions of other circuits, e.g.,

allowing prayer by students and nonschool persons in

classrooms, school-controlled assemblies, sporting events and

graduation ceremonies.

A. The State-Action Holding Is Anomalous

The other circuits that have ruled on the state-action

defense to student-initiated or -led prayers, including those

“permitted” by school officials, have held contrary to the

Eleventh Circuit. The Fifth, Third, Ninth, Second, and Seventh

Circuits have asked not who the speaker is, but whether the

machinery of the state has been used to endorse religion.

For example, the Fifth Circuit, construing a statute

indistinguishable from Alabama’s, struck it. The state argued at

every juncture that state action was not implicated by a statute

requiring school officials to “permit” “nonsectarian,

nonproselytizing, student-initiated, voluntary prayer” at

assemblies, sporting events, graduations, and other school-

related events. The district court’s rejection of the state-action

defense was upheld on appeal, the Fifth Circuit expressly finding

the statute unconstitutional notwithstanding that students were

the speakers, because it made use of the coercive power of the

state, including compulsory attendance laws. Ingebretsen v.

Jackson Pub. Sch. Dist., 88 F.3d 274 (5® Cir.), cert. denied sub

nom. Moore v. Ingebretsen, 519 U.S. 965 (1996).” Accord

” Nor does Jngebretsen stand alone in the Fifth Circuit. In Santa Fe,

the Fifth Circuit, examining student-led football game prayers, again

rejected a state-action defense: “[G]overnment imprimatur is not so easily

masked: Prayers that a school ‘merely’ permits will still be delivered to a

government-organized audience, by means of government-owned

appliances and equipment, on government-controlled property, at a

Clause concerns.” 168 F.3d at 817. Accord Doe v. Duncanville Indep. Sch.

Dist., 70 F.3d 160, 162-63 (5® Cir. 1993) (Doe II) (enjoining prayers not

led by school officials at school assemblies and pep rallies). Notably, Jones

Karen B. v. Treen, 653 F.2d 897, 902 (5" Cir.), aff'd, 455 U.S.

913 (1982) (striking voluntary-prayer statute providing for

student-led classroom prayer because statute made use of

compulsory attendance laws, school hours, school supervision,

and schoolchildren); Doe v. Duncanville Indep. Sch. Dist. (Doe

I), 994 F.2d 160 (5" Cir. 1993) (affirming injunction forbidding

school employees from “permitting” or promoting prayer during

school-sponsored sporting events); Doe J/, 70 F.3d at 406

(student-led prayers unconstitutional where school employs its

facilities and programs for this purpose).

The Ninth Circuit is also in conflict with the Eleventh

Circuit. In Collins v. Chandler Unified School District, 644

F.2d 759, 761 (9" Cir. 1981), the court found no meaningful

distinction between school authorities’ permitting and students’

directing of religious exercises at school-sponsored assemblies

and upheld an injunction prohibiting school officials from

““permitting, authorizing, or condoning the saying of public

prayers by students.”” It did so explicitly because it recognized

that school officials do not as a practical matter have a “hands-

off’ attitude toward major school functions and that school

v. Clear Creek Independent School District, 977 F.2d 963 (5" Cir.) (Jones

II), cert. denied, 508 U.S. 967 (1992), while authorizing student-initiated

prayer at graduation ceremonies only, unlike Chandler, does not extend its

holding to nonschool persons. See Santa Fe, 168 F.3d at 818 (explaining

that graduation prayers were constitutional in Jones I] because they were

not clergy-led).

officials control access to school facilities. 644 F.2d at 762-63.

In ACLU v. Blackhorse Pike Regional Board of

Education, 84 F.3d 1471, 1477-79 (36 Cir. 1996) (en banc), the

Third Circuit likewise held that even if school officials delegate

control over some aspect of a school-sponsored graduation

program to students, an Establishment Clause violation may still

occur because the program is school-sponsored and Lee’s

coercive effects can exist with student-led prayer. Similarly, the

Second Circuit, in Stein v. Oshinsky, 348 F.2d 999 (2d Cir.),

cert. denied, 382 U.S. 957 (1965), reversed an order that

prohibited school officials from preventing student-led prayer

during the school day, reasoning that the “closely organized

schooling of young children” rendered “‘student-initiated’

prayers” at school events “an illusion.” 382 F.2d at 1001.”

The Seventh Circuit has rejected the Eleventh Circuit’s

assumption that religious activity conducted by nonschool

persons is immunized by lack of state action. It has held that, far

from immunizing them, the very fact that school officials give

nonschool others permission to use the machinery of the state,

by opening up their classrooms, auditoriums, and captive

student audiences to the Gideons, makes these “others” state

actors for purposes of the Establishment Clause. Berger v.

Stein, Treen and Ingebretsen are also instructive on the free-speech

issue, discussed infra. In those cases, the schools allowed for no other

forms of expression and created special platforms for religious speech, as

in Chandler.

Renssalaer Cent. Sch. Corp., 982 F.2d 1160, 1165-66 (7* Cir.),

. cert. denied, 508 U.S. 911 (1993).

B. The Free-Speech Holding Is Anomalous

Just as the circuits that have binding precedents on the

state-action issue have rejected the Eleventh Circuit’s position,

so have they rejected any rationale whereby free speech subverts

the Establishment Clause. No other court has held that students

and nonschool persons have a right to engage in prayer and

religious activity in school-related events irrespective of the

existence of a public forum or any other identifiable source of

such expressive rights.

The Third, Ninth, Seventh, and Fifth Circuits have

rejected the Eleventh Circuit’s position. The lack of a public

forum was central to their reasoning. In Blackhorse Pike, the

Third Circuit rebuffed the free-speech justification for prayer

led by elected students at graduation because it found no public

forum. See 84 F.3d at 1477. In Collins, the Ninth Circuit found

unpersuasive a proffered free-speech justification for student-led

prayer at school assemblies because of the constraints of the

school setting. See 644 F.2d at 762. In Berger, the Seventh

Circuit found that, where the state opens its classrooms to the

Gideons, the “free speech of private actors” rationale fails as a

matter of law. See 982 F.2d at 1166-67. In Santa Fe, the Fifth

Circuit held that, even where school officials do not monitor

content and students lead the prayers, free speech fails as a

defense to an Establishment Clause violation because public

forum analysis fails where government facilities are used and

school control exists. See 168 F.3d at 817, 819-22 (also

rejecting viewpoint discrimination argument).

The Eleventh Circuit parts company with the other

circuits on this crucial issue.

CONCLUSION

Because the Eleventh Circuit’s decision is irreconcilable

with this Court’s relevant precedents and inconsistent with the

decisions of other circuits, the petition for a writ of certiorari

should be granted.

PAMELA L. SUMNERS* ELIZABETH J. HUBERTZ

LAW OFFICES OF PAMELA L. SUMNERS P.O. Box 370862

P.O. Box 370862 Birmingham, AL 35237

Birmingham, AL 35237-0862 (205)567-9326

(205)320-0200

*COUNSEL OF RECORD

STEVEN K. GREEN STEPHEN L. PEVAR

AMERICANS UNITED FOR ACLU FOUNDATION

SEPARATION OF CHURCH & STATE 1888 Sherman Avenue

518 C Street, N.E. Suite 380

Washington, D.C. 20002 Denver, CO 80203

(202) 466-3234 (303) 839-5752

APPENDIX

5 ;

Pes ye

Fy oie yn

eee i

pes

APPENDIX

Panel decision in Michael Chandler et al. v. Forrest

H. “Fob” James, Jr., et al., 180 F.3d 1254 (11" Cir.

eG en Pa ew dla bet as Al

District Court’s Order on Motion for Partial Stay of

Permanent Injunction (December 17, 1997) ..... Bl

District Court’s Memorandum Opinion and Order

regarding section 16-1-20.3 of the Alabama Code

red Sv agied bbe ee ease Cl

District Court’s Permanent Injunction (October 29,

REGIA anette ne ar ener eRe tee eee D1

District Court’s Supplemental Opinion and Order

SU, GEES. pip cs cece bevcueeuvs El

District Court’s Memorandum Opinion and Order

SE Oe OED os ws ok cc hohe ea eekwee Fl

Eleventh Circuit order denying rehearing and

rehearing en banc (September 29,1999) ........ Gl

Constitutional and statutory provisions......... H1

Parties’ Joint Motion to Vacate This Court’s

Order and Agreement of Voluntary Cessation

of Certain Activity Pending This Court’s

Re es es Oeics vais Ds ip aera Il

Appendix A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 97-6898, 97-6953

D. C. Docket No. 96-CV-169-N

MICHAEL CHANDLER, individually and as

next friend of his son, Jesse Chandler,

et al.,

Plaintiffs-Appellees,

versus

FOB JAMES, JR, in his official capacity

as Governor of the State of Alabama and

President of the State Board of Education,

etal.,

Defendants-Appellants.

Appeals from the United States District Court

for the Middle District of Alabama

(July 13, 1999)

Before TJOFLAT, Circuit Judge, and GODBOLD and HILL,

Senior Circuit Judges.

HILL, Senior Circuit Judge:

Plaintiffs brought this action challenging the facial

constitutionality of Alabama’s statute permitting non-sectarian,

non-proselytizing student-initiated prayer, invocations and

benedictions during compulsory or non-compulsory school-

related assemblies, sporting events, graduation ceremonies and

other school-related events. Plaintiffs also challenged the statute

as applied by the DeKalb County School Board. The district

court held the statute unconstitutional on its face, granted

plaintiffs partial summary judgment on their claims regarding the

statute as applied, and enjoined defendants from enforcing the

statute or continuing to conduct the challenged practices.

Defendants bring this appeal.

In 1993, the Alabama Legislature enacted a statute

containing the following provision:

(b) On public school, other public, or other

property, non-sectarian, non-proselytizing

student-initiated voluntary prayer, invocation

and/or benedictions, shall be permitted during

compulsory or non-compulsory school-related

student assemblies, school-related student

sporting events, school-related graduation or

commencement ceremonies, and other school-

related student events.

Ala. Code § 16-1-20.3(b) (1995).

In 1996, Michael Chandler, a vice-principal in the

DeKalb County school system, and his son Jesse, a student in

that system, brought this action challenging the facial validity

and the application of this statute in the DeKalb County

schools.’ Defendants included the Governor of the State of

Alabama, the State Superintendent of Education, the members

of the State Board of Education, and the Superintendents and

members of the boards of education of the City of Talladega and

of DeKalb County, Alabama.”

On March 12, 1997, the district court granted partial

summary judgment for the Chandlers, holding the statute facially

unconstitutional. On October 29, 1997, the district court

permanently enjoined DeKalb County from enforcing the

statute. On November 12, 1997, the district court issued

findings of fact and conclusions of law in its Supplemental

' Also named as plaintiffs are Jane Doe and her daughter Deborah Doe.

? The Chandlers subsequently entered into a partial consent decree with the

City of Talladega and the district court dismissed the Talladega defendants

from the case in 1996.

Opinion and Order. That same day, but by separate

Memorandum Opinion and Order, the district court held that

DeKalb had engaged in unconstitutional officially organized or

sponsored religious activities, and granted summary judgment

to the Chandlers on their claim that DeKalb had applied the

statute unconstitutionally. The district court appointed a

monitor to oversee the enforcement of the Permanent

Injunction. All defendants appealed from. the Permanent

Injunction, the Supplemental Opinion and Order, and the

Memorandum Opinion and Order.

In his brief, the Governor of the State of Alabama asserts

that the district court erred in holding the statute facially

unconstitutional under the First Amendment. The Governor

contends that the First Amendment’s prohibition against the

establishment of a religion does not apply to the states by virtue

of the Fourteenth Amendment. The district court rejected this

argument, as do we. Cantwell v. Connecticut, 310 U.S. 296,

303 (1940). See also Everson v. Board of Educ., 330 U.S. 1,

8 (1947). Because the states are bound by the First

Amendment, the district court did not err in evaluating

Alabama’s statute under it. Accordingly, we shall affirm the

judgment of the district court as to the Governor’s appeal.’

The remainder of the appellants (referred to collectively

> The Governor does not assert any other error by the district court. We do

not decide whether the district court erred in holding the statute matey

unconstitutional for any reason not presented to us.

END ee TP aCe ee ee

as DeKalb) do not contest the district court’s holding that the

statute is facially unconstitutional, nor that the DeKalb County

schools engaged in unconstitutional officially organized or

sponsored religious activities. Therefore, we do not review the

district court’s determinations of these issues.

Neither does DeKalb appeal that portion of the

Permanent Injunction entered by the district court which

prohibits it from “aiding, abetting, commanding, counseling,

inducing, ordering, or procuring . . . school organized or

officially sanctioned religious activity in its schools including,

but not limited to, vocal prayer, Bible and devotional or

scriptural readings, distribution of religious materials, texts, or

announcements, and discussions of a devotional or inspirational

nature, in school or at school-related events, to include

assemblies, sporting events, and graduation ceremonies.”

Apparently, DeKalb concedes that, under Supreme Court

precedent, it may not prescribe prayer or allow state employees

to lead, participate in or otherwise endorse prayer of any type

during curricular or extracurricular events.‘ See Lee v.

Weisman, 505 U.S. 577, 586 (1992); County of Allegheny v.

ACLU, 492 U.S. 573, 594 (1989); Doe v. Duncanville Indep.

Sch. Dist., 70 F.3d 402 (5® Cir. 1995).

The Permanent Injunction, however, also prohibits

DeKalb from “permitting” vocal prayer or other devotional

speech in its schools. While the injunction makes clear that it

“We do not, therefore, reach any of these issues.

does not prohibit students from voluntarily praying while at

school or at school-related events, either individually or with

each other, so long as the prayer is purely private,” it prohibits

all prayer or other devotional speech in situations which are not

purely private, such as aloud in the classroom, over the public

address system, or as part of the program at school-related

assemblies and sporting events, or at a graduation ceremony.

Furthermore, the prohibition applies to bar not only school

personnel from leading or participating in such public or vocal

prayer or other devotional speech or Bible reading, but also

requires school officials to forbid students ° or other private

individuals from doing so while in school or at school-related

events.

DeKalb does appeal this portion of the Permanent

Injunction. It contends that the district court may not

constitutionally require it to forbid this speech, pointing out that

the Supreme Court has made very clear that “[p]rivate religious

speech, far from being a First Amendment orphan, is as fully

protected under the Free Speech Clause as secular private

° The Permanent Injunction recites that nothing in it should be read to

“affect the rights of secondary-school students to engage in religious

activity during noninstructional time that is consistent with the federal

Equal Access Act, 20 U.S.C. § 4071 ef seg., or to quietly engage in

religious activity during noninstructional times.” Permanent Injunction at

° We shall refer to all non-government, private parties collectively as

“students.”

expression.” Capital Square Review Advisory Bd. v. Pinette,

515 U.S. 753, 760 (1995).’ “There is a crucial difference

between government speech endorsing religion, which the

Establishment Clause forbids, and private speech endorsing

religion, which the Free Speech and Free Exercise Clauses

protect.” Board of Educ. of Westside Community Schools v.

Mergens, 496 U.S. 226, 250 (1990) (quoting Edwards vy.

Aguillard, 482 U.S. 578, 584 (1987)) (emphasis in original).

Even the Chandlers agree that “[t]he Establishment

Clause does not ban prayer. It bans state prayer.” (Plaintiffs’

’ The Departments of Justice and Education issued a statement of principles

in the summer of 1995 “to provide school officials with guidance

[concerning] the extent to which religious expression and activities are

permitted in public schools.” The first paragraph of the statement advises:

Student prayer and religions discussion: The

Establishment clause of the First Amendment does not

prohibit purely private religious speech by students.

Students therefore have the same right to engage in

individual or group prayer and religious discussion during

the school day as they do to engage in other comparable

activity. For example, students may read their Bibles or

other scriptures, say grace before meals, and pray before

tests to the same extent they may engage in comparable

non-disruptive activities. Local school authorities possess

substantial discretion to impose rules of order and other

pedagogical restrictions on student activities, but they may

not structure or administer such mules to discriminate

against religious activity or speech.

News Release of U.S. Dep’t of Educ., Aug. 17, 1995, at 3.

Reply Brief) (emphasis in original). They contend, however,

that student-initiated religious speech in the public schools is

state prayer, and, therefore, DeKalb may not permit it.

Our review of the Permanent Injunction, then, is limited

to the issue of whether the district court may constitutionally

enjoin DeKalb from permitting student-initiated religious speech

in its schools.* For the following reasons, we hold the court

may not. We vacate the Permanent Injunction and remand for

further proceedings.

The district court’s opinion holds that the Constitution

requires it to prohibit public religious speech in schools because

the Establishment Clause is violated if government permits

religious speech — even if initiated by students — in schools or

at school-related events. DeKalb contends that this conclusion

is wrong for two reasons. First, students are not state actors

and, therefore, by definition, their actions cannot tend to

“establish” religion in violation of the Establishment Clause.

Second, the Free Speech and Free Exercise Clauses of the First

Amendment require the State to folerate genuinely student-

initiated religious speech in schools.

Students as State Actors and the Establishment Clause

The Establishment Clause prohibits Congress — or any

other governmental body — from acting in such a way as to

* DeKalb also appeals the district court’s decision to appoint a monitor to

enforce its injunction which we discuss below.

establish a religion. Everson, 330 U.S. at 8. DeKalb argues that

because students are not state actors — Congress or a

governmental body — their religious speech cannot, by definition,

tend to establish a religion.

It is true that ordinarily religious speech by private

parties cannot establish religion, even if it occurs in a public

institution, such as a school. Mergens, 496 U.S. at 250. On the

other hand, it is clear that private parties’ religious speech can

violate the Establishment Clause if the State uses such parties as

surrogates to accomplish what the State may not do. For

example, if a school board may not constitutionally write and

require students to recite a prayer, as it most assuredly may not,

Engel v. Vitale, 370 U.S. 421 (1962), the school board may not

avoid this prohibition by delegating this function to others. Lee,

505 U.S. at 577 (invalidating school board policy permitting

clergy to give prayers at graduation); Karen B. v. Treen, 653

F.2d 897 (5® Cir. 1981) (invalidating school board guidelines

which required student or teacher-led prayers in classrooms).

Nor may the State establish a policy which “permits” private

parties to speak, but then limits their speech to prayer or other

devotional speech. Jngebretsen v. Jackson Pub. Sch. Dist., 88

F.3d 274, 277 (5* Cir. 1996) (authorizing invocations,

benedictions and prayers); ACLU v. Black Horse Pike Reg’l

Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996) (school board policy

permitted students to vote to have prayer at graduation); Harris

v. Joint Sch. Dist., 41 F.3d 447 (9" Cir. 1994), vacated as moot,

515 U.S. 1155 (1995) (school policy permitted student to lead

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prayer), Jager v. Douglas County Sch. Dist., 862 F.2d 824

(11 Cir. 1989) (authorizing student-led invocations and only

invocations at school sporting events); Hall v. Board of Sch.

Comm'rs, 656 F.2d 999 (5" Cir. 1981) (school policy permitted

devotionals, and only devotionals); Collins v. Chandler Unified

Sch. Dist., 644 F.2d 759, 760-61 (9 Cir. 1981) (authorizing

invocations, benedictions, and prayers only).

When the State commands religious speech, it steps over

the Constitution to establish religion. In each of these cases, it

is the State ’s decision to create an exclusively religious medium

which violates the Establishment Clause; not the private parties’

religious speech. It is not the “permitting” of religious speech

which dooms these policies, but rather the requirement that the

speech be religious, i.e., invocations, benedictions, or prayers.

This was the holding of the original school prayer case,

Engel v. Vitale, in which the Court observed:

The Petitioners contend among other things that

the state laws requiring or permitting use of the

Regents’ prayer must be struck down as a

violation of the Establishment Clause because

that prayer was composed by governmental

officials as a part of a governmental program to

further religious beliefs. For this reason,

petitioners argue, the State’s use of the Regents’

prayer in its public school system breaches the

constitutional wall of separation between Church

and State. We agree with that contention since

silica aia

All

we think that the constitutional prohibition

against laws respecting an establishment of

religion must at least mean that in this country it

is no part of the business of government to

compose official prayers for any group of the

American people to recite as a part of a

religious program carried on by governmeni.

370 U.S. at 425 (emphasis supplied). The Court held, therefore,

that “government in this country, be it state or federal, is

without power to prescribe by law any particular form of

prayer which is to be used as an official prayer in carrying on

any program of governmentally sponsored religious activity.”

Id. (emphasis supplied). This is all it held.

Some lower courts have extended Engel to require

government to prohibit amy public expression of religious belief

in schools. Support for this holding is said to be located in the

Court’s observation that the denominational neutrality of the

prayer did not “free it from the limitations of the Establishment

Clause.” Jd. at 430. These courts interpreted this to mean that

no religious speech could be tolerated in the public schools

because the Establishment Clause forbade it.

This is not what the Court said, however. The

denominational neutrality of the Regent’s prayer could not “free

it from the limitations of the Establishment Clause” because the

prayer was “commanded” by the State. It really did not matter

what the prayer said; mo prayer commanded by the State can

survive scrutiny under the Establishment Clause.

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The Court specifically cautioned that “nothing could be

more wrong” than to interpret Enge/ to require “a hostility

toward religion or toward prayer.” Id. at 434 (emphasis -

supplied). On the contrary, “[t]he history of man is inseparable

from the history of religion.” The First Amendment, “which

tried to put an end to governmental control of religion and of

prayer, was not written to destroy either.” /d. at 435. Rather,

it protects freedom of religious expression by forbidding

government from requiring us to “speak only the religious

thoughts that government want(s] [us] to speak and to pray only

to the God that government want(s] [us] to pray to.” Jd. The

Court summarized its holding in Engel in the following way:

It is neither sacrilegious nor antireligious to say

that each separate government in this country

Should stay out of the business of writing or

sanctioning official prayers and leave that

purely religious function to the people

themselves and to those the people choose to

look to for religious guidance.

Id. (emphasis supplied). Thus, Enge/ merely made clear that

the Establishment Clause prohibits the government from

commanding prayer and prescribing its form.°

But DeKalb does not claim otherwise. DeKalb contends

* The opt-out provision of the school board's policy was constitutionally

insignificant in the context of “governmentally composed prayers for

religious services” in schools. 370 U.S. at 425.

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only that nothing in the First Amendment, nor in any of the

Supreme Court’s interpretations of it, requires it to prohibit the

religious speech of private parties — such as students — if that

speech is genuinely privately-initiated, i.e., not commanded by

a school board or state law. On the contrary, DeKalb argues,

the First Amendment positively requires that it tolerate students’

religious speech to the same extent that it permits students’

secular speech.

The Chandlers, on the other hand, contend that when the

State permits students to speak religiously in situations that are

not purely private,’® the State lends its imprimatur to the

speech, thereby endorsing and advancing religion in violation of

the “obligation of the public schools to provide a religiously

neutral environment.” They also argue that all public religious

speech in schools is unconstitutionally coercive of some students

because of “peer pressure.” Consequently, schools must forbid

all public religious speech in school, including genuinely student-

initiated religious speech.

S Free Exerci Fr h Clauses

This, then, is the question DeKalb asks us to answer.

Do school officiais have “the ability (and duty) to impose

content restrictions on purportedly ‘private’ speakers at school

events,” in order to achieve neutrality with respect to religion as

'° The Permanent Injunction, for example, permits students to “quietly

engage in religious activity during noninstructional times, so long as it does

not unduly call attention thereto.”

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the Chandlers contend (Chandlers’ Brief at 27); or do the Free

Exercise and Free Speech Clauses require that school officials

permit student religious speech at the same time, and in the same

place and manner as secular speech, as DeKalb contends?

Under the Chandlers’ theory, student religious speech is

attributable to the State thereby violating the constitutional

requirement of neutrality. Students, therefore, cannot be

permitted to speak freely in school if religion is the topic; the

State has a positive duty to censor student speech if it is

religious.

We disagree. The suppression of student-initiated

religious speech is neither necessary to, nor does it achieve,

constitutional neutrality towards religion. For that reason, the

Constitution does not permit its suppression.

It is true that government must be neutral with respect

to religion. But it is equally true, as Justice Goldberg warned,

that an:

untutored devotion to the concept of neutrality

can lead to invocation or approval of results

which partake not simply of that noninterference

and noninvolvement with the religious which the

Constitution commands, but of a brooding and

pervasive dedication to the secular and a passive,

or even active, hostility to the religious. Such

results are not only not compelled by the

Constitution, but, it seems to me, are prohibited

by it.

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School Dist. of Abington Township v. Schempp, 374 U.S. 203,

306 (1963) (Goldberg, J. concurring).

The discriminatory suppression of student-initiated

religious speech demonstrates not neutrality but hostility toward

- eligion because the:

exclusion of religious ideas, symbols, and voices

marginalizes religion... . Silence about a

subject conveys a powerful message. When the

public sphere is open to ideas and symbols

‘representing nonreligious viewpoints, culture,

and ideological commitment, to exclude all those

whose basis is “religious” would profoundly

distort public culture.

Michael W. McConnell, Religious Freedom at a Crossroads, 59

U. Chi. L. Rev. 115, 189 (Winter 1992).

The prohibition of all religious speech in our public

schools implies, therefore, an unconstitutional disapproval of

religion. If endorsement is unconstitutional because it “sends a

message to nonadherents that they are outsiders,” disapproval

is unconstitutional because it “sends the opposite message.”

Lynch, 465 U.S. at 688 (O’Connor, J., concurring). “What is

crucial is that a government practice not have the effect of

communicating a message of government endorsement or

disapproval of religion.” Jd at 692 (emphasis supplied).

“Cleansing” our public schools of all religious expression,

however, inevitably results in the “establishment” of disbelief —

atheism — as the State’s religion. Since the Constitution requires

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neutrality, it cannot be the case that government may prefer

disbelief over religion.”

Permitting students to speak religiously signifies neither

state approval nor disapproval of that speech. The speech is

not the State’s — either by attribution or by adoption. The

permission signifies no more than that the State acknowledges

its constitutional duty to tolerate religious expression. Only in

this way is true neutrality achieved.

Because genuinely student-initiated religious speech is

private speech endorsing religion, it is fully protected by both

the Free Exercise and the Free Speech Clauses of the

Constitution. See Mergens, 496 U.S. at 250; Jones v. Clear

Creek Indep. Sch. Dist., 977 F.2d 963 (5 Cir. 1992).

“Students do not shed their constitutional rights . . . at the

schooihouse gate.” Tinker v. Des Moines Indep. Community

Sch. Dist., 393 U.S. 503, 506 (1969). Religious speech by

students does not become forbidden “state action” the moment

'! We believe that the First Amendment’s requirement that government

“tolerate” diverse political views, including those that are totally

antithetical to our constitutionally guaranteed republican form of

government, applies to require that government “tolerate” atheistic views

without also requiring that we eschew religion. Tolerance of disbelief does

not require that we deny our religious heritage, nor elevate atheism over

that heritage. The First Amendment requires only that the State tolerate

both, while establishing neither. Americans, however, are free to prefer

one or the other and to express that preference wherever they are permitted

to speak. This means, of course, that a student may choose to express his

atheistic views as well as his religious ones.

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the students walk through the schoolhouse door.

Furthermore, the Supreme Court has made clear that

permitting religious speech or symbols in our public institutions

does not automatically constitute an unconstitutional State

endorsement of religion. In fact,”[t]here is an unbroken history

of official acknowledgment by all three branches of government

of the role of religion in American life from at least 1789.” -

Lynch v. Donnelly, 465 U.S. 668, 674 (1983). References to

our religious heritage are found in the statutorily prescribed

national motto on our currency, “In God We Trust,” 36 U.S.C.

§ 186, and in the language “one nation under God,” which is

part of the Pledge of Allegiance to our flag — recited by public

school children every day. Congress opens with a prayer, and,

indeed, the Supreme Court, itself, hears oral argument in a

chamber decorated with a depiction of Moses and the Ten

Commandments. We celebrate Thanksgiving and Christmas as

national holidays, and Congress has directed the President to

proclaim a National Day of Prayer each year “on which [day] .

the people of the United States may turn to God in prayer and

meditation at churches, in groups, and as individuals.” 36

U.S.C. § 169h.

The Constitution does not require a complete separation

of church and state such that religious expression may not be

tolerated in our public institutions.’? In fact, “it affirmatively

" In fact, the Constitution probably does not require a “wall” at all. The

phrase comes from a letter written by Jefferson who was neither present

Al8g

mandates accommodation, not merely tolerance, of all religions,

and forbids hostility toward any.” Lynch, 465 U.S. at 673

(emphasis supplied). The Supreme Court has made clear that

“fa}nything less would require the ‘callous indifference’ we have

said was never intended by the Establishment Clause,” and

“would bring us into ‘war with our national traditions as

embodied in the First Amendment’ s guaranty of the free exercise

of religion.”” Jd. (quoting McCollum v. Board of Education,

333 U.S. 203, 211-12 (1948)). _

The examples cited above all “evidence [our]

accommodation of all faiths and all forms of religious

expression, and hostility toward none. Through this

accommodation . . . governmental action has ‘follow[ed] the

best of our traditions’ and ‘respect[ed] the religious nature of

our people.’” Lynch, 465 U.S. at 677-78 (quoting Zorach v.

Clauson, 343 U.S. 306, 314 (1952)). Genuinely student-

initiated religious speech can also be accommodated without

resulting in an unconstitutional State endorsement of religion.

when the First Amendment was passed, nor consulted about its language.

In a short note to the Danbury Baptist Association written fourteen years

after the Bill of Rights was passed, he made a passing reference to idea that

the First Amendment “build[s] a wall of separation between church and

State.” See Wallace v. Jaffree, 472 U.S. 38, 92 (Rehnquist, J., dissenting).

In any event, the “wall” concept has been acknowledged by the Court itself,

with what Justice Rehnquist characterized as “embarrassing candor,” as

merely a “blurred, indistinct, and variable barrier,” which “is not wholly

accurate” and can only be “dimly perceived.” /d. at 107 (quoting Lemon v.

Kurtzman, 403 U.S. 602, 614 (1971)).

Og Te OR Eee ds ED ee a nn SD OP Weds ae” ee ae

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Furthermore, even if permitting student-initiated

religious speech advances religion in some sense, this does not

mean the speech violates the Establishment Clause. Even Siate

action may incidentally advance religion without offending the

Constitution. Widmar v. Vincent, 254 U.S. 263 (1981). The

Supreme Court has recognized that “our precedents plainly

contemplate that on occasion some advancement of religion will

result from governmental action.” Lynch, 465 U.S. at 683.

“Not every law that confers an ‘indirect,’ ‘remote,’ or

‘incidental’ benefit upon [religion] is, for that reason alone,

constitutionally invalid.” Jd. (quoting Committee for Public

Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 771

(1973)). Student-initiated religious speech, therefore, even if it

incidentally advances religion, does not violate the

Establishment Clause because it is private speech endorsing

religion which the First Amendment protects. See Clear Creek,

977 F.2d at 965.

Finally, the fact that student religious speech may fall on

deaf ears does not make it unconstitutionally coercive. Lee, 505

U.S. at 577. In Lee, the Supreme Court was careful to point out

that:

We do not hold that every state action

implicating religion is invalid if one or a few

citizens find it offensive. People may take

offense at all manner of religious as well as

nonreligious messages, but offense alone does

not in every case show a violation. We know

A20

too that sometimes to endure social isolation or

even anger may be the price of conscience or

nonconformity.

505 U.S. at 597. Those who do not espouse a speaker’s

religious beliefs are free not to listen, and to express their

disagreement by not participating in any way.

Accommodation of religious beliefs we do not share is,

however, a part of everyday life in this country:

In so acting, we express respect for, but not

endorsement of, the fundamental values of

others. We act without expressing a position on

the theological merit of those values or of

religious belief in general, and no one perceives

us to have taken such a position.

Lee, 505 U.S. at 628 (Souter, J. concurring). Respect for the

rights of others to express their beliefs, both political and

religious, is the price the Constitution extracts for our own

liberty.'* This is a price we freely pay. It is not coerced.’* Only

'3 Of course, in this case we do not have state action. Private religious

speech has even less potential for coercion.

'4 Justice Scalia observed in Lee that “We indeed live in a vulgar age. But

surely ‘our social conventions,’ have not coarsened to the point that anyone

who does not stand on his chair and shout obscenities can reasonably be

deemed to have assented to everything said in his presence. ... I may add,

moreover, that maintaining respect for the religious observances of others

is a fundamental civic virtue that government (including the public schools)

can and should cultivate — so that even if it were the case that the

A21

when the speech is commanded by the State does it

unconstitutionally coerce the listener.'®

Ultimately, the issue in this case is not whether school

officials may prescribe prayer or enlist surrogates to that end.

They may not. Nor is the issue whether school officials may

prohibit religious speech in schools, or censor the content of that

speech. _They may not. The real issue is what sort of time,

place, and manner limits may be imposed upon genuinely

student-initiated religious speech in schools? When may

students pray? Where may they pray? Under what

circumstances may they pray?

displaying of such respect might be mistaken for taking part in the prayer,

I would deny that the dissenter’s interest in avoiding even the false

appearance of participation constitutionally trumps the government’s

interest in fostering respect for religion generally.” 505 U.S. at 637-38

(Scalia, J. dissenting).

'S Justice Souter acknowledged this in Lee: “If the State had chosen its

graduation day speakers according to wholly secular criteria, and if one of

those speakers (not a state actor) had individually chosen to deliver a

religious message, it would have been harder to attribute an endorsement

of religion to the State. But that is not our case.” 505 U.S. at 630 n. 8.

_'® The “indirect coercion” identified in Lee by the plurality opinion was

exerted over the audience by the State’s command that there be religious

speech at graduation. 505 U.S. at 592-93. Justice Kennedy’s concern that

“in the hands of government what might begin as a tolerant expression of

religious views may end in a policy to indoctrinate and coerce, ” id. at 591-

92 (emphasis supplied), does not apply to the case of student-initiated

religious speech.

A22

In answering these questions, we must fulfill the

constitutional requirement of permitting students freely to

express their religious beliefs without allowing the machinery of

government — the school — to be used to command prayer. This

requires that we resolve the tension between the right to pray

and the right to be free from government-mandated prayer. This

is not an easy task. It would be easy simply to banish prayer

from our public institutions, but this would be not only

constitutionally incorrect, but also fundamentally unfair to our

society.

Il.

How, then, does a school accommodate religious

expression without commanding it? DeKalb argues that the

answer is simple — it is to be “permitted.” Not required. Not

commanded. Not even suggested. Simply, permitted. If

students, or other private parties, wish to speak religiously while

in school or at school-related events, they may exercise their

First Amendment right to do so.

The first principle must always be that genuinely student-

initiated religious speech must be permitted. A student’s

individual decision to pray or otherwise speak reiigiously is not

the State’s command. Clear Creek, 977 F. 2d at 965."" Such

'’ The Ninth Circuit alSo upheld a policy that permitted the top four

students to speak on any topic of their choosing without state approval in

Doe v. Madison Sch. Dist., 147 F.3d 832 (9® Cir. 1998), but the court en

banc ordered the district cowrt to dismiss the complaint for lack of standing

and mootness. No. 97-35642 (9® Cir. May 19, 1999).

“ve ean ee ee Tee

7-err Ter eee

A23

speech is fully protected. Jd. See also Mergens, 496 U'S. at

252.

On the other hand, even genuinely student-initiated

religious speech may constitute state action if the State

participates in or supervises the speech. See Duncanville, 70

F.3d at 406-07."* Religious speech in school by teachers, for

example, is especially troublesome because “a teacher’s

[religious] speech can be taken as directly and deliberately

representative of the school.” Bishop v. Aronov, 926 F.2d -

1066, 1073 (11 Cir. 1991). Teacher participation in student-

initiated prayer “improperly entangles the State in religion and

signals an unconstitutional endorsement of religion.”

* While many subsequent courts have cited Duncanville for the proposition

that student-initiated speech at school-related sporting events is

unconstitutional, the Fifth Circuit specifically held that, “[s]tudents may

voluntarily pray together, provided such prayer is not done with school

participation or supervision.” 70 F.3d at 405 (emphasis supplied). Judge

Jones, in her separate concurrence and dissent, pointed out that:

This decision . . . does not prevent students from

exercising their constitutional rights of free speech,

association and free exercise by praying at appropriate

times and in an appropriate manner during athletic

practices or games. Further, we must abide by the

Supreme Court's decisions . . . that prevent active school

leadership, encouragement or promotion of the prayers.

The only questions here are how teachers may respond to

student-initiated prayers and to what extent the school

may “supervise” the prayers.

70 F.3d at 409.

A24

Duncanville, 70 F.3d at 406. In upholding the Equal Access

Act, which provides that schools must afford religious groups

the same access to school facilities as secular groups enjoy, the

Supreme Court relied in part on the act’s express prohibition on

teacher participation which “avoids the problems of the

‘students’ emulation of teachers as role models.’”” Mergens, 496

U.S. at 251 (quoting Edwards, 482 U.S. at 584). Therefore,

student religious speech must be without oversight, without

supervision,’” subject only to the same reasonable time, place,

and manner restrictions as all other student speech in school.

'® What constitutes “supervision?” As Judge Jones wrote in Duncanville:

At a broad level, everything that goes on during practice

or competition, including student-initiated locker-room

or basketball court prayer, is subject to the coaches’

“supervision.” To outlaw supervision on this level would -

be to outlaw the otherwise constitutional student-led

prayers. . . . It must be, then, that the injunction pertains

only to active supervision and is thus redundant of the

cautions that the school may not promote, encourage or

lead prayers.

70 F.3d 410.

Supervision cannot mean, therefore, mere presence. Support for

this view is found in Mergens in which the Supreme Court found no

constitutional infirmity with the provision of the EAA which permits school

employees to be present for custodial purposes at religious meetings held

on school property. 496 U.S. at 236. We agree with Judge Jones that, for

supervision to amount to unconstitutional endorsement, it must cross the

line into active endorsement, encouragement or participation.

A25

Because religious speech is protected speech,

government may not censor its content. Lamb’s Chapel v.

Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394

(1993) (quoting Cornelius v. NAACP Legal Defense & Educ.

Fund, Inc., 473 U.S. 788, 806 (1985)) (the government violates

the First Amendment when it denies access to a speaker solely

to suppress the point of view he espouses). Suppression of

religious speech constitutes viewpoint discrimination, the most

egregious form of content-based censorship. Rosenberger v.

Rectors & Visitors of Univ. of Va., 515 U.S. 819, 831 (1995).

Government may not, therefore, censor religion from the

content of students’ protected speech at school. Cornelius, 473

U.S. at 806 (“Control over access to a nonpublic forum can be

based on subject matter and speaker identity so long as the

distinctions drawn are reasonable in light of the purpose served

by the forum and are viewpoint neutral.”) (emphasis supplied);

Perry Educ. Ass’n v. Perry Local Educators’ Ass'n, 460 U.S.

37, 46 (1983) (A “state may reserve the [nonpublic] forum for

its intended purposes . . . as long as the regulation on speech is

reasonable and not an effort to suppress expression merely

because public officials oppose the speaker’s view.”)

A student’s right to speak religiously is not, however,

without limit. The school may impose the same reasonable

restrictions on the time, place, and manner of religious speech

as it does on secular student speech. Furthermore, a student’s

right to express his personal religious beliefs does not extend to

using the machinery of the state as a vehicle for converting his

A26

audience. See Abington, 374 U.S. at 228. The Constitution

requires that schools permit religious expression, not religious

proselytizing. “The principle that government may

accommodate the free exercise of religion does not supersede

the fundamental limitations imposed by the Establishment

Clause.” Lee, 505 U.S. at 587. Proselytizing speech is

inherently coercive and, the Constitution prohibits it from the

government’s pulpit. /d.

IV.

The Permanent Injunction enjoins DeKalb from “aiding,

abetting, commanding, counseling, inducing, ordering, or

procuring” school organized or officially sanctioned religious

activity. DeKalb does not appeal this prohibition. The record

in this case reveals, however, that there were many sincere, but

unconstitutional efforts by school personnel to do just what the

injunction prohibits — to endorse, encourage, or participate in

student religious activity. For this reason, the appointment of a

monitor by the district court was not an abuse of discretion. See

Local 28 of the Sheet Metal Workers’ Int'l v. EEOC, 478 U.S.

421, 481-82 (1986). The monitor’s task is to be vigilant in

guarding against the repetition of this unconstitutional activity

by the schools.

The Permanent Injunction also forbids DeKalb from

“permitting” students to speak religiously. This it cannot

constitutionally do. So long as school personnel do not

participate in or actively supervise student-initiated speech,

DeKalb cannot constitutionally prohibit students from speaking

A27

religiously and the Permanent Injunction cannot require it to.

We do not undertake to re-write the Permanent

Injunction. The district court is in the best position to do that.

We note only that the Permanent Injunction may neither prohibit

genuinely student-initiated religious speech, nor apply

restrictions on the time, place, and manner of that speech which

exceed those placed on students’ secular speech.”

Accordingly, the Judgment of the district court is

AFFIRMED as to the Governor’s appeal. As to the remaining

defendants’ appeals, the Permanent Injunction is VACATED

and the case is REMANDED for further proceedings not

inconsistent with this opinion.

” This includes restrictions on announcements permitted in the schools’

commencement programs, and the distribution of religious literature.

A28

TJOFLAT, Circuit Judge, specially concurring:

I agree wholeheartedly with the majority’s analysis in

this case. I write separately, however, to emphasize a more

fundamental error made by the district court. I believe that

many provisions of the injunction entered by the district court

were entered in violation of basic principles of equity

jurisprudence and constitutional law — namely, the principle that

equity will not intervene where there is an adequate remedy at

law and the constitutional principle of separation of powers.

These principles, for reasons that will be explained hereafter,

lead to the conclusion that a court should not enter an injunction

that cannot be enforced through coercive contempt sanctions.

Some of the injunctive provisions at issue here cannot be so

enforced, and therefore must be vacated.'

In part I of this concurrence, after recognizing that

injunctions are enforced through contempt sanctions, I discuss

the types of contempt sanctions generally available fo a judge.

I then explain that the types of contempt sanctions available to

address a violation of a particular injunction depend on the

nature of the injunction; not all types of sanctions are available

for all injunctions. Finally, I explain why, based on equitable

and constitutional considerations, an injunction should be

' The issues I discuss herein were properly not relied upon by the majority

opinion for the simple reason that they were not raised by the appellants

either in the district court or on appeal. They are, however, sufficiently

important to our system of jurisprudence that I feel it is appropriate -

indeed necessary — to address them sua sponte in this concurrence.

ee ee Fe ee eee ee NS ge ee ee at

A29

entered as a form of relief for a party to a lawsuit only when one

type of contempt sanction — coercive — is potentially available

for violations. Part II then applies this rule to the facts of this

case.

Injunctions are enforced through contempt sanctions.

See 18 U.S.C. § 401(3) (1994). When it comes to a judge’s

attention that an individual may not be in compliance with an

injunction he has entered, he holds a “show cause” hearing at

which the allegedly noncomplying individual is asked to show

cause why he is disobeying the injunction. If the individual is in

fact disobeying the injunction, and he is unable to provide an

acceptable excuse for doing so, then he is subject to the

contempt powers of the court.” In this part, I discuss the types

of contempt sanctions available to a court, and then discuss how

this should impact the court’s decision whether to grant

injunctive relief in the first instance.

Contempt sanctions take one of three forms: punitive,

compensatory, or coercive. Punitive sanctions punish the

contemnor for his conduct, and are imposed for the purpose of

vindicating the authority of the court. See Gompers v. Buck’s

* This procedure is laid out in more detail in Wyatt v. Rogers, 92 F.3d

1074, 1078 n.8 (11™ Cir. 1996).

A30

Stove & Range Co., 221 U.S. 418, 441, 31 S. Ct. 492, 498, 55

L. Ed. 797 (1911).° For instance, if an individual is served with

a subpoena duces tecum but refuses to produce the requested

documents, and the court subsequently holds him in contempt

and imposes a flat fine of $50 (payable to the court) for his

contempt, the contempt sanction is properly classified as

punitive. See Penfield Co. of Cal. v. SEC, 330 U.S. 585, 592-

93, 67 S. Ct. 918, 922, 91 L. Ed. 1117 (1947). In such a

situation, the opposing party is provided no relief, because it

gets neither the requested documents nor the proceeds from the

fine. Furthermore, the contemnor has no way to purge the

contempt (in other words, avoid the fine); if he produced the

requested documents five minutes after the court’s decision, he

would still be required to pay $50. The sanction in such a case

is intended to punish the contemnor for his contempt, thereby

vindicating the court’s authority and thus deterring the

contemnor and others from violating subsequent judicial orders

(issued by the same or any other court). Punitive sanctions are

criminal in nature and therefore many of the constitutional

protections available in criminal proceedings — including the

presumption of innocence, the privilege against self-

incrimination, the right to counsel, and the nght to a jury trial in

serious cases — must be provided to the alleged contemnor

> The principles set forth in Gompers have been recently reaffirmed in

International Union, United Mine Workers of America v. Bagwell, 512

U.S. 821, 826-29, 114 § .Ct. 2552, 2556-58, 129 L. Ed. 2d 642 (1994).

A31

before such sanctions can be imposed. See Young v. United

States ex rel. Vuitton et Fils $.A., 481 U.S. 787, 798-99, 107 S.

Ct. 2124, 2133, 95 L. Ed. 2d 740 (1987).4

The second form of contempt sanction is compensatory.

Compensatory sanctions are civil in nature and compensate the

plaintiff for the damage caused by the contemnor’s contempt.

See United States v. United Mine Workers of Am., 330 US.

258, 303-04, 67 S. Ct. 677, 701, 91 L. Ed. 884 (1947). The

contempt sanction in the well-known case of Jones v. Clinton,

36 F. Supp. 2d 1118 (E.D. Ark. 1999), falls into this category.

In that case, the court, having found that the defendant gave

false deposition testimony, held the defendant in contempt. The

punishment for the contempt was a payment to the plaintiff of

the expenses (including attorney’s fees) caused by the false

testimony. See id, at 1134-35. Compensatory sanctions, unlike

punitive sanctions, provide a direct benefit to the plaintiff. Like

punitive sanctions, however, the contemnor is unable to purge

* As stated in Young:

[D]efendants in criminal contempt proceedings must be

presumed innocent, proved guilty beyond a reasonable

doubt, and accorded the right to refuse to testify against

themselves; must be advised of charges, have a

reasonable opportunity to respond to them, and be

permitted the assistance of counsel and the right to call

witnesses; must be given a public trial before an unbiased

judge; and must be afforded a jury trial for serious

contempts.

Young, 481 U.S. at 798-99, 107 S .Ct. at 2133 (citations omitted).

A32

his contempt: Were President Clinton now to amend his

deposition answers to make them completely accurate, the

contempt sanctions would nevertheless remain in force.

The third form of contempt sanction is coercive.

Coercive sanctions are also civil in nature, and are intended to

coerce the contemnor into doing an act that he is already

required to do, but refuses to perform. See Gompers, 221 U.S.

at 441-42, 31 S. Ct. at 498. Thus, to use the previously cited

example from Penfield, if the district court had ordered the

recipient of the subpoena duces tecum to pay.a fine of $50 per

day for every day the recipient failed to produce the requested

documents, such a sanction would be coercive.’ Coercive

sanctions benefit the plaintiff by pressuring the defendant into

performing an action that the plaintiff desires to have performed.

See id. at 442, 31 S. Ct. at 498. They also give the contemnor

the opportunity to purge his contempt: The punishment

continues only as long as the contemnor refuses to comply with

the relevant court order. Hence, in regard to coercive sanctions,

it is often said that a contemnor carries the key to his prison in

his own pocket. See, e.g., Blalock v. United States, 844 F.2d

1546, 1559 (11" Cir. 1988) (Tjoflat, J., specially concurring)

(quoting In re Nevitt, 117 F. 448, 461 (8 Cir. 1902)).

The lines separating each type of sanction from the

> The fine would presumably be paid to the court, although in theory it

could be paid to the opposing party. Regardless of who received the money,

eagenine ial sitiiablensinehanomtaliiyiet.spimammmanamaal

into compliance, the fine would be classified as coercive.

LPRVE Rr Se te ane ee

— s

ESE

A33

others are not always clear. Consider a situation in which a court

imposes a $150 contempt sanction on a party, payable to fhe

adverse party but in no way correlated to the harm suffered by

that party. The fact that the sanction is payable to the adverse

party (and not the court) makes the sanction appear

compensatory, but the fact that the amount of the sanction is

unrelated to the harm suffered by the adverse party leads to the

conclusion that the sanction is in fact punitive. Cf. Thyssen, Inc.

v. S/S Chuen On, 693 F.2d 1171, 1173-74 (5™ Cir. 1982).

Furthermore, every contempt sanction serves to some degree to

vindicate the authority of the court (and thus is somewhat

punitive) and to dissuade the contemnor from repeating his

misbehavior (and thus is somewhat coercive). See Gompers,

221 U.S. at 443, 31 S. Ct. at 498. One might argue that this

fact renders meaningless the distinctions among the types of

contempt sanctions — for instance, because all contempt

sanctions are somewhat punitive, it makes no sense to

distinguish punitive contempt sanctions from the other two types

of contempt sanctions. This, however, is the equivalent of

arguing that because all men have facial hair, it makes no sense

to distinguish between bearded and non-bearded men. In both

cases, the question is one of degree, and the fact that there will

be difficult cases at the margins does not deprive the conceptual

categories of their significance. Instead, difficult cases merely

require a detailed “examination of the character of” the sanction

being imposed in order to determine whether it is punitive,

compensatory, or coercive. Hicks v. Feiock, 485 U.S. 624, 636,

A34

108 S. Ct. 1423, 1432, 99 L. Ed. 2d 721 (1988).

The types of sanctions — punitive, compensatory, or

coercive — that can be used to enforce an injunction depend on

the character of the conduct being enjoined. Consider first an

injunction that commands the performance of a specific act. For

instance, imagine a case in which the defendant operates a paper

mill that is discharging pollutants onto the plaintiff's land. The

plaintiff brings a lawsuit alleging a nuisance, and seeks an

injunction ordering the defendant to shut down the mill. The

plaintiff succeeds and the injunction is granted. The defendant,

however, continues to operate the paper mill. The court, after

conducting a show cause hearing and finding the defendant in

contempt, could use any of the types of sanction previously

discussed: a punitive sanction (such as a flat fine of $10,000), a

compensatory sanction (such as a fine of $5,000, which is

roughly equal to the harm caused, payable to the plaintiff), or a

coercive sanction (such as a fine of $100 per day until the paper - :

mill is shut down).

Next, consider an injunction that forbids the performance

of a specific act. For instance, imagine a case in which an

employee alleges that her corporate employer, through the

actions of its CEO (who is also the majority shareholder), has,

on a number of occasions, touched her in inappropriate areas.

The employee claims that this behavior constitutes sexual

A35

harassment, in violation of 42 U.S.C. § 2000e-2(a)(1) (1994).°

She files a lawsuit against her employer, seeking an injunction

ordering the employer to cease the harassment.’ She succeeds,

and the injunction is granted. Nevertheless, the CEO continues

the inappropriate touching. The court, after conducting a show

cause hearing and finding the employer in contempt, can assess

punitive sanctions (such as a flat fine of $10,000, payable to the

court) Or compensatory sanctions (such as a fine equal to the

harm caused, payable to the employee). Coercive sanctions,

however, are not available, because the act to be prevented by

the injunction has already occurred ~ in other words, there is no

* The employee’s claim would be that the CEO had cizated an “abusive

work environment,” as opposed to a claim of quid pro quo sexual

harassment. See yenerally Harris v. Forklift Systems, Inc., 510 U.S. 17,

114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (discussing “abusive work

environment” claims).

” Injunctions of this sort actually amount to nothing more than injunctions

to “obey the law,” which, for reasons different from those outlined here,

have repeatedly been held invalid. See, e.g., Payne v. Travenol Labs., Inc..,

565 F.2d 895, 897-98 (5" Cir. 1978) (holding that injunctions to “obey the

law” violate the requirements of Fed. R. Civ. P. 65(d) that an injunction “be

specific” and “describe in reasonable detail . . . the act or acts sought to be

restrained”). (In Bonner vy. City of Prichard. 661 F.2d 1206, 1209 (11" Cir.

1981) (en banc), this court adopted as binding precedent all decisions of the

former Fifth Circuit handed down prior to October 1, 1981.)

A36

way to purge the contempt.* See Gompers, 221 U.S. at 442, 31

S. Ct. at 498 (“[I]f the defendant does that which he has been

commanded not to do, the disobedience is a thing accomplished.

[Contempt sanctions] cannot undo or remedy what has been

done... .”).

To make the point clearer, try to imagine a court

attempting to enter coercive sanctions in the situation outlined

above. The court has enjoined the employer not to harass the

employee. The employer nevertheless does so, and, after a

show cause hearing, is held in contempt. The court fines the

employer $100 per day until . . . well, until what? Presumably,

until the court is persuaded that the harassing CEO will not

repeat his misbehavior. Thus, after three days of fines, the CEO

contacts the judge and promises that he will never again sexually

harass the employee. The court thinks the CEO was shifting his

eyes a bit much when he made the promise, however, and

therefore allows the fines to continue accumulating. After a

week of fines, the CEO makes the same promise, but this time

on his knees and with his hands clearly visible so that the court

can see that the CEO’s fingers are not crossed. The court is still

unpersuaded, and continues allowing the fines to accrue. This

* The situation might be different depending on the nature of the

harassment. For instance, if the harassment consisted in part of the

placement of pornographic pictures throughout the office, the employee

could seek an injunction ordering that the pictures be removed. If the

injunction was granted, it could be enforced through coercive sanctions —

for instance, a fine of $200 per day until the pictures were removed.

TING, FER es, ELI oo ng haenR atte,

A37

exercise would presumably continue until such time as the court,

for whatever reason, decided that the CEO had learned his

lesson.” Even then, the contempt would not have been purged,

because the harassment would already have been fiully

accomplished. The point is simply that when an injunction

forbids the performance of an act, coercive sanctions are not

available to enforce the injunction.

Note that it is not the affirmative or negative phrasing of

the injunction that is critical. An injunction commanding the

performance of specific act (for instance, “shut down the paper

mill”) could, in many cases, just as easily be phrased as an

injunction prohibiting a ongoing harm (for instance, “do not

operate the paper mill”). Likewise, an injunction forbidding the

performance of a specific act (for instance, “do not sexually

harass the employee”) could, in many cases, be phrased as an

injunction commanding the performance of an ongoing duty (for

instance, “treat male and female employees equally”). Cf.

International Union, United Mine Workers of Am. v. Bagwell,

512 U.S. 821, 835, 114 S. Ct. 2552, 2561, 129 L. Ed. 2d 642

(1994) (suggesting that an injunction directed at a union stating,

“Do not strike,” is essentially the same as one stating, “Continue

working”). Rather, it is the underlying nature of the injunction

— specifically, whether it is commanding an act that the law

* In contrast, where the contemnor is enjoined to perform a specific act,

promises of future compliance are neither necessary nor relevant — the

contemnor can avoid sanctions by (and only by) performing the

commanded act.

alll

A38

requires or proscribing an act that the law forbids — that

determines whether it can be enforced through coercive

sanctions.

In sum, if an injunction commands the performance of a

specific act (such as shutting down a paper mill), then all three

types of sanctions are available to the court. If, however, an

injunction forbids the performance of an act (such as sexually

harassing an employee), then only punitive and compensatory

sanctions are available to the court.

The types of contempt sanctions available for violation

of an injunction determine the effectiveness of the injunctive

relief being given to the plaintiff. Specifically, as I discuss in this

section, injunctions that are enforceable only through punitive

and compensatory sanctions provide relief to a plaintiff that is —

at best — duplicative of the relief available through an action for

damages.’ Only injunctions enforceable through coercive

sanctions provide a form of relief that is unique to equity. They

are therefore the only type of injunctions that courts should

enter, on the basis of the rule that injunctions should not be

granted where the plaintiff has an adequate remedy at law. See

Weaver v. Florida Power & Light Co., 172 F.3d 771, 773 (11

'° This is not to say that punitive and compensatory sanctions should never

be used to enforce injunctions. Some examples of their proper use will be

discussed in part I.E, infra

A39

Cir. 1999).

Punitive sanctions provide essentially no relief to the

plaintiff — as discussed above, the purpose of punitive sanctions

is to vindicate the court’s authority, not to benefit a party to a

lawsuit. Any benefit to the plaintiff from such a sanction is

incidental and indirect. For instance, in the sexual harassment

hypothetical in part I1.B, supra, assume that the court chose to

impose a punitive sanction — such as a fine of $10,000 against

the employer, payable to the court. This fine would do nothing

to affect the harassment that had already occurred; at this point,

the harassment is a “done deal” and the court cannot undo it. In

addition, the fine would do nothing to compensate the plaintiff

for the harm caused by the harassment. The only benefit

provided to the plaintiff from the fine would be a deterrent:

Because of the imposition of the fine, the employer might be less

inclined to harass the plaintiff in the future. This deterrent,

however, is equally available to the plaintiff through an action

for damages: If, instead of seeking an injunction and then calling

for a show cause hearing at which the employer was assessed

punitive sanctions, the plaintiff had simply brought a damages

action after the harassment occurred, the employer would be

equally deterred. (Furthermore, the plaintiff would receive

compensation for the harm caused, unlike in the injunction

scenario.) In sum, every benefit that the plaintiff gets from an

injunction enforced by punitive sanctions would be equally

available in an action for damages.

Compensatory sanctions merely imitate the relief that

A40

would be provided in a damages action. For instance, returning

to the sexual harassment example, assume that the court chose

to impose a compensatory sanction on the employer. The court,

after hearing argument from both parties, determined that the

damage to the plaintiff from the harassment was roughly $5,000,

and ordered the employer to pay that amount to the plaintiff.

The fine does not affect the prior harassment (it is again a “done

deal”), but compensates the plaintiff for the harm she has

suffered. In this situation, the relief provided to the plaintiff

imitates that which would be provided in a damages action -- in

terms of both compensation to the plaintiff and as a future

deterrent to the employer. Again, as with punitive sanctions,

every benefit that the plaintiff gets from an injunction enforced

by compensatory sanctions would be equally available from an

action for damages.

Coercive sanctions, in contrast, provide meaningful and

unique relief to the plaintiff. For instance, using the paper mill

hypothetical from part I.B, supra, assume that the court chose

to impose a fine of $100 per day on the defendant until he shut

down the paper mill. The defendant is now subject to an ever-

increasing pressure to take the action that the plaintiff seeks — a

pressure that would not be available through an ordinary

damages action. There is of course still no guarantee that the

defendant will shut down the mili, but, because of the injunction,

the plaintiff is ableto exert greater pressure on the defendant to

do so than would be possible in the absence of the injunction.

These observations lead to the conclusion that where an

a gto RA ERS

the iow Acs P

the Pi ahi A

: A41

injunction is enforceable only through punitive or compensatory

contempt sanctions,’ and not through coercive contempt

sanctions, the injunctive remedy being given to the plaintiff is no

better than the remedy he could have obtained in an after-the- -

fact action for damages. Therefore, the plaintiff necessarily has

an adequate remedy at law — or at least a remedy at law that is

no less adequate than the injunctive remedy.’? Consequently,

'' As discussed in part I.B, supra, injunctions are enforceable only through

punitive or compensatory contempt sanctions whea they forbid the

performance of an act (or command the performance of an ongoing duty).

2 An injunction enforceable only through punitive or compensatory

sanctions does give a plaintiff one benefit that a damages action cannot

provide: an ex ante declaration of the rights of the parties. For instance,

consider a case in which the defendant is preparing to remove some trees

from a plot of land. The plaintiff, asserting that the land is his, seeks an

injunction (based on the law of trespass) forbidding the defendant from

removing the trees. The plaintiff succeeds and the injunction is issued.

The defendant, having previously believed that the land was his, may now

be persuaded to change his behavior. Thus, although the injunction would

not be enforceable through coercive contempt sanctions (because it forbids

the performance of an act), it would nevertheless have provided the plaintiff

with meaningful relief in the form of an ex ante declaration of rights. If,

however, this is the only form of relief being provided to the plaintiff, then

the appropriate remedial vehicle is a declaratory judgment, not an

injunction. See 28 U.S.C. § 2201 (1994).

The distinction is not merely a formal one: Injunctions, unlike

declaratory judgments, implicate the court’s contempt powers and thus

subject the enjoined party to sanctions should he disobey. Declaratory

judgments therefore do not raise the same separation-of-powers concerns

A42

the principle that an injunction will not be entered where the

plaintiff has an adequate remedy at law forbids the entering of

an injunction under such circumstances. _

In addition to violating equitable principles, an injunction

that is enforceable only through punitive or compensatory

sanctions may also violate the Constitution. Specifically, such

an injunction has the potential to run afoul of the constitutional

doctrine of separation of powers.

An injunction forbidding the performance of a particular

act must be based on a conclusion that the act forbidden, if

performed, would constitute a violation of the law. Otherwise,

the court would be enjoining the performance of a perfectly

legal act, which the court is without authority to do.

If the law on which the injunction is based is legislatively

created, then the legislature is likely also to have created rules

regarding the means by which the law should be enforced and

the appropniate sanction for a violation of the law. For instance,

the harassing behavior of the hypothetical CEO in part IB,

supra, is illegal as a result of Section 703 of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1994).

The procedure for enforcing Title VII is set forth in 42 U.S.C.

§ 2000e-5 (1994). Under that section, an employee alleging a

Title VII violation must first file a charge with the Equal

as injunctions, as discussed in part I.D, infra.

A43

Employment Opportunity Commission (“EEOC”). If the EEOC

decides not to bring a civil action against the employer, it must

notify the aggrieved employee, who then has ninety days in

which to bring a civil action on her own. See 42 U.S.C. §

2000e-5(f)(1).- If the action is successful, the types of relief

available to the employee are set forth in 42 U.S.C. § 2000e-

5(g).”

Once the employee obtains an injunction that orders the

employer to cease the harassment, however, she can completely

circumvent the procedure prescribed by Congress. No notice to

the EEOC is necessary; the employee need only request a show

cause hearing from the court. If the employer is held in

'? Section 2000e-5(g) specifically authorizes injunctive relief for violations

of Title VII. This provision could conceivably be read as congressional

authorization of injunctive relief regardless of whether the plaintiff has an

adequate remedy at law. The more reasonable reading of the provision is

that it means merely that injunctive relief is allowed when the traditional

equitable requirements are met — including the absence of an adequate

remedy at law. See Sanchez v. Philip Morris Inc., 774 F. Supp. 626, 630-

31 (W.D. Okla. 1991) (denying an injunction in a Title VII case on the

ground that the plaintiff's legal remedies are adequate); cf. Hecht Co. v.

Bowles, 321 U.S. 321, 329-30, 64 S. Ct. 587, 591-92, 88 L. Ed. 754 (1944)

(holding, in regard to a similar provision in the Emergency Price Control

Act, that the traditional rules of equity still apply to the granting of

injunctions). Even if I am mistaken in this view, however, this means

merely that Title VII is an exception to the general rule (much like

securities law, see infra note 18) and takes nothing away from the broader

point being made in the text.

A44

contempt, the court can respond with compensatory or punitive

sanctions. See supra part IB. If the court imposes

compensatory sanctions, the limitations on relief found in 42

U.S.C. § 2000e-5(g) will be inapplicable. Furthermore, the

employer will have no means of raising many of the defenses

that would be available in an ordinary civil action, such as

laches. If the court imposes punitive sanctions, it will have

effectively made criminal conduct that Congress has not deemed

criminal (in light of the absence of statutory criminal

punishments for violations of Title VII). Even if Congress had

done so, the enforcement of the criminal law would be a matter

for the executive branch, not the judicial branch." Thus,

regardless of whether the injunction is enforced through

compensatory or punitive sanctions, the court has intruded on

the province of the legislative and executive branches by altering

the congressionally-created procedures and remedies for sexual

harassment.'° |

In sum, an injunction enforceable only through punitive

or compensatory sanctions constitutes an individualized criminal

or civil law (respectively). This new law is duplicative of the

existing law but with a different enforcement mechanism —

“This is one of the reasons for the equitable principle that equity will not

enjoin the commission of a crime. See 11A Charles Alan Wright et al.,

Federal Practice and Procedure § 2942, at 70-71 (2d ed. 1995).

'* The court could avoid this problem only by conducting a contempt

proceeding that, in every relevant way, duplicated a criminal or civil trial.

A45

contempt proceedings — and thus creates an opportunity to use

different procedures and to impose different sanctions from

those contemplated by the legislature under the circumstances.

Therefore, where the action being enjoined is a violation of

statutory law, the entry of an injunction implicates the

constitutional doctrine of separation of‘powers. See Wilder v.

Virginia Hosp. Ass’n, 496 U.S. 498, 508 n.9, 110 S. Ct. 2510,

2517 n.9, 110 L. Ed. 2d 455 (1990) (noting that separation of

powers requires “that Congress rather than the courts controls

the availability of remedies for violations of statutes”); cf. NURB

v. Express Pub. Co., 312 U.S. 426, 435, 61 S. Ct. 693, 699, 85 _

L. Ed. 930 (1941) (noting that, except where a specific violation

has been found, “Congress did not contemplate that the courts

should, by contempt proceedings, try alleged violations of the

National Labor Relations Act”).

_ In light of all I have just said, a few caveats are in order.

First, I am not saying that punitive and compensatory contempt

sanctions are never appropriate means for enforcing an

injunction. For instance, if a party is enjoined to produce certain

documents and then destroys those documents, coercive

sanctions would no longer be available. Under those

circumstances, a punitive contempt sanction would be an

important means of vindicating the court’s authority. The

injunction nevertheless would have been appropriately entered,

because coercive sanctions were a viable option at the time the

A46

injunction was entered and thus the injunction provided

meaningful relief to the adverse party.

Second, a court may enter an injunction that is not

enforceable through coercive contempt sanctions when the court

enters the injunction in aid of its jurisdiction. For instance, if a

government official is enjoined to perform a certain act, and

another individual tries to prevent the official from performing

the act, the court could issue an injunction commanding the

individual to cease his interference. Such an injunction would

be appropriate despite not being enforceable through coercive

sanctions, because the injunction was not entered as a form of

relief for a party to a lawsuit, and thus there is no issue as to

whether that party would have an adequate remedy at law. Cf.

18 U.S.C. § 1509 (1994) (authorizing injunctive relief against

persons who forcefully interfere with the performance of duties

under a court order, regardless of whether the conduct enjoined

is also independently criminal).

Finally, I am not denying the importance of the

injunction in modern jurisprudence. The principles outlined

above would have permitted’ for instance, the use of the

injunction in school desegregation cases. In such cases, the

defendants were enjoined to undertake a specific, albeit

complex, act: Create a unitary school system. Theoretically, the

defendants could have been jailed until such time as they

PLACE LG ELAS A

A47

complied with the court’s mandate.'® Once the commanded act

had been done, however, the court’s mandate would have been

fully obeyed and any contempt would have been purged.

In conclusion, when a party seeks an injunction to create

criminal and/or civil liability via the court’s contempt powers,

rather than to coerce an adverse party into taking an action

required of it, that party is using the legal device of an injunction

for a purpose for which it was not designed.’ See Hecht Co. v.

Bowles, 321 U.S. 321, 329, 64 S. Ct. 587, 592, 88 L. Ed. 754

(1944) (“The historical injunctive process was designed to deter,

not to punish.”). Such an injunction provides no relief for the

'® The more common approach was to require school districts to submit to

the court a plan for creating a unitary school system; if the plan was

approved by the court, the court would retain jurisdiction to see if

implementation of the plan succeeded in fulfilling the court’s mandate.

See, ¢.g., Brown v. Board of Educ. of Topeka, Kan., 139 F. Supp. 468, 470

(D. Kan. 1955). When various obstacles prevented fulfillment of the

mandate — for instance, outside interference or obstinacy by certain officials

— courts often issued injunctions in aid of their jurisdiction (sometimes

enforceable only through punitive contempt sanctions, as discussed supra)

to ensure compliance with their initial orders.

"’ Indeed, if such an action were taken by a plaintiff deliberately, it would

likely amount to the tort of abuse of process. Cf. Dykes v. Hosemann, 776

F.2d 942, 950 (11 Cir. 1985) (Tjoflat, J., concurring in part and dissenting

in part).

A48

plaintiff (or at least no relief that could not be obtained at law),

and intrudes into areas constitutionally reserved for the

legislative and executive branches. Therefore, when a court is

faced with a request for injunctive relief, it should consider how

the requested injunction is to be enforced. If the injunction

cannot be enforced using coercive sanctions, then it should not

be entered.'*

Il.

The appellants in this case challenge two sets of

provisions in the injunction entered by the district court. The

first set of injunctive provisions enjoins the members of the

DeKalb County Board of Education and the employees of the

DeKalb County school system (such as principals and teachers)

'® An exception that proves the rule can be found in the area of securities

law. Most SEC enforcement actions are resolved by injunctions (entered

pursuant to consent decrees) that order the defendant essentially to do

nothing more than obey the securities laws. See, e.g., SEC v. Clifton, 700

F.2d 744, 746 (D.C. Cir. 1983). These injunctions allow the SEC to punish

repeat offenders without having to bring a separate lawsuit for each offense;

instead, the commission needs only to request a show cause hearing to

obtain sanctions against the offender. See id. at 748. This practice is

permissible, however, only because Congress has specifically authorized it

in the Securities Act of 1933. See 15 U.S.C. § 77t(b) (1994); SEC v. Jones,

85 F.2d 17, 17 (2d Cir. 1936) (noting that, because of the Securities Act,

the SEC need not allege the absence of an adequate remedy at law when

seeking injunctive relief). This specific congressional authorization

suggests that such a practice would be impermissible if not so authorized.

A49

not to permit students to engage in various forms of religious

activity.'° For instance, the defendants were enjoined from

“permitting . . . vocal prayer; Bible and religious devotional or

scriptural readings; distribution of religious materials, texts, or

announcements; and discussions of a devotional/inspirational

nature” in the DeKalb County schools. The defendants were

also enjoined from “permitting . . . prayers, invocations,

benedictions, or devotional messages at graduation or

commencement exercises.” Similar provisions were included in

regard to public-address systems and school-sponsored

assemblies and events.

These provisions, for the reasons outlined in part I, were

entered in error. It is clear that the provisions are not

enforceable through coercive sanctions. For instance, assume

that a DeKalb County school principal violates the injunction by

“permitting” a student prayer at graduation.” Plaintiff Jesse

'? The members of the DeKalb County Board of Education (and their

successors in office) are the defendants in the lawsuit. The injunction

extends to the employees of the school system on the ground that they are

“jn active concert and participation with” the defendants.

injunction’s command that the defendants not “permit” certain activity is

too vague to satisfy the requirements of Fed. R- Civ. P. 65(d). See

American Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407, 1411

(11" Cir. 1998); Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1531 (11° Cir.

1996). What exactly does it mean, for instance, for a principal to “permit”

a prayer at a school’s graduation? Does it mean merely that if he is aware

ASO

Chandler is present at the graduation, and, after hearing the

prayer, obtains a show cause hearing from the district court.”

At the hearing, the court holds the principal in contempt. In this

situation, the harm sought to be prevented by the injunction —

namely, the violation of Chandler’s Establishment Clause rights”

— would already have occurred, and the court could do no more

than punish the principal for his contempt or attempt to

compensate Chandler for the harm caused. The only form of

coercive relief imaginable under the circumstances would consist

of fining or imprisoning the principal until such time as the

district court was convinced (presumably on the basis of nothing

other than the principal’s sincere-sounding promises) that he

that a student speaker is going to pray, then he must ask the student not to

do so? Must he prevent the student from speaking altogether once he is

aware that the student is inclined to pray? Ifa student speaker surprises the

principal with a prayer at graduation, must he, at once, rush on stage and

attempt physically to remove the student from the microphone? This

vagueness makes it impossible for the defendants to know exactly what the

injunction requires of them.

” The only plaintiffs in the case against the DeKalb County Board of

Education are Michael Chandler and his son Jesse, a seventh-grade student

in the DeKalb County school system. Michael Chandler appeared as “next

friend” for his son.

2 J seriously doubt, in light of the majority’s analysis, that a principal who

permits a prayer, without more, has violated a student’s Establishment

Clause rights. For purposes of my analysis, however, I will assume the

correctness of the district court’s conclusion to the contrary.

; AS1

would not repeat the offense; even then, the coercive sanctions

would not have provided Chandler with any relief because the

harm would still be fully accomplished. Cf. Gompers, 221 U.S.

at 442, 31 S. Ct. at 498. Thus, only punitive or compensatory

sanctions would be available.

Insofar as the injunction would be enforced via punitive

contempt sanctions, it would provide no direct relief to

Chandler. The only benefit it would bring to Chandler would be

a deterrent to the principal, one which would be equally

available in an action for damages under 42 U.S.C. § 1983

(1994). Thus, the injunction, if enforced by punitive contempt

sanctions, gives Chandler no better relief than that which he

could obtain at law.

Furthermore, enforcing the injunction with punitive

contempt sanctions would raise a separation-of-powers problem.

A necessary prerequisite for the issuance of the injunction was

the district court’s conclusion that the behavior to be enjoined

— for instance, permitting a prayer at graduation — would

constitute a violation of Chandler’s constitutional rights.

Therefore, punitive sanctions in response to a violation of the

injunction would in essence be punishment for violating

Chandler’s constitutional rights. The legislature, however, has

already prescribed the appropriate criminal punishments for

violations of constitutional rights in 18 U.S.C. § 242 (1994),

which states that whoever, under color of law, “willfully subjects

any person . . . to the deprivation of any rights, privileges, or

immunities secured or protected by the Constitution or laws of

A52

the United States . . . , shall be fined under this title or

imprisoned not more than one year, or both.”” The

enforcement of this provision is the job of the executive branch,

meaning that Congress has determined that the United States

Attorney, not the judiciary, is to determine whether the principal

should be prosecuted. In such a prosecution, the full panoply of

constitutional protections would apply, rather than the limited

set that has been held to apply to the imposition of criminal

contempt sanctions. See supra note 4. Furthermore, in a

criminal prosecution, the principal could raise the defense, based

on the “fair warning” requirement of the Due Process Clause,

that section 242 does not clearly prohibit “permitting” a prayer

at graduation. See United States v. Lanier, 520 U.S. 259, 267,

117S. Ct. 1219, 1225, 137 L. Ed. 2d 432 (1997) (discussing, in

the context of a section 242 prosecution, the constitutional

requirement that the statute under which the defendant is

prosecuted must have “made it reasonably clear at the relevant

time that the defendant’s conduct was criminal”). Such a

defense would be unlikely to be available in a contempt hearing,

because the injunction — unlike the statute — explicitly prohibits

this behavior. In sum, ciminal sanctions based on this

3 Conspiracies to violate this provision are outlawed by 18 U.S.C. § 241

(1994), which authorizes fines and imprisonment of up to ten years. Thus,

if the United States Attorney could demonstrate that the principal conspired

with, for instance, one or more members of the DeKalb County Board of

Education to permit the prayer, it could obtain convictions under section

241 in addition to section 242.

AS3

injunction would constitute interference with the role of both the

legislative and executive branches.”

4 Congress has responded to this problem to some degree in 18 U.S.C. §

402 (1994), titled, “Contempts constituting crimes.” Under that section,

where conduct constituting contempt of a district court order also

constitutes a crime under federal or state law, the alleged contemnor is

entitled to a trial by jury. Furthermore, the contemnor cannot be sentenced

to more than six months imprisonment and cannot be assessed a punitive

fine of more than $1,000.

One could contend that this statute implicitly authorizes the sort

of “end run” around criminal procedure that I am attacking, and thus

eliminates any separation-of-powers problem. After all, why would

Congress pass a law prescribing procedures and penalties for contempts

constituting crimes if it did not consider injunctions necessarily leading to

such contempts (if disobeyed) to be acceptable?

A look at the legislative history of section 402 dispels this

- contention. Section 402 was passed in 1914 to prevent the abuse of labor

injunctions. Congress was concerned that corporations were obtaining

injunctions forbidding certain union activity, these injunctions were then

enforced through summary contempt proceedings. (The constitutional

protections that are now available in criminal contempt proceedings, see

supra note 4, were not available at that time.) The result was the

imposition of penalties for violations of the criminal law, but without the

benefit of a jury trial. Section 402 was intended to minimize this problem.

See United States v. Pyle, 518 F. Supp. 139, 152 (E.D. Pa. 1981)

(discussing legislative history); 48 Cong. Rec. 8778 (1912) (“The courts

have, under the guise of contempt of court, had men arrested and tried for

crimes without the intervention of a jury.” (statement of Rep. Clayton)).

In light of this legislative history, it is difficult to read section 402

as Congress’ stamp of approval on injunctions enforceable only through

A54

Insofar as this injunction would be enforced via

compensatory contempt sanctions, it would merely be imitating

the relief available to Chandler under 42 U.S.C. § 1983. Again,

as with punitive sanctions, the injunction would give Chandler

no relief different from that which he could obtain at law.”°

It would, however, provide that relief in a manner

punitive (or compensatory) sanctions. On the contrary, section 402 arises

out of disapproval of such injunctions. See id. at 8779 (“This bill is to

prevent a man or, say, a corporation, rich and powerful, getting out a

blanket injunction at midnight, broad as the canopy of heaven in its terms,

and then oppressing the poor, humble laborer.” (statement of Rep.

Clayton)). The fact that Congress chose to address the problem by limiting

the damage at the back end (when contempt sanctions are imposed) in no

way implies approval of the practice at the front end (when the injunction

is issued). Cf. id. at 8798 (quoting statement of Rep. Sabath that the bill is

not as broad as it should be, but is a step in the right direction).

Furthermore, had Congress intended so radical a move as to

abolish completely the longstanding equitable principle that equity will not

enjoin a crime, see supra note 14, it surely would have said something to

indicate such an intent. Cf. Hecht Co. v. Bowles, 321 U.S. 321, 329, 64S.

Ct. 587, 591, 88 L. Ed. 754 (1944) (“We cannot but think that if Congress

had intended to make such a drastic departure from the traditions of equity

practice, an unequivocal statement of its purpose would have been made.”).

Nothing in the legislative history suggests that this is the case.

> The fact that exhaustion of state remedies is not required in section 1983

actions does not alter the requirement that a plaintiff seeking injunctive

relief on the basis of section 1983 must demonstrate the absence of an

adequate remedy at law. See Wallace v. Kern, 520 F.2d 400, 407 n.13 (2d

Cir. 1975).

A55

contrary to that which Congress contemplated in enacting

section 1983, again creating a separation-of-powers problem.”

For instance, in a section 1983 proceeding, the principal would

be entitled to a trial by jury; this right is not guaranteed in a civil

contempt proceeding. Furthermore, in an ordinary section 1983

suit, the principal could respond to the complaint with a motion

to dismiss for failure to state a claim. If that failed, the principal

could assert a defense of qualified immunity, on the ground that

liability for “permitting” a prayer at graduation is not clearly

established by Supreme Court or Eleventh Circuit precedent.”’

*° This problem might not arise if the alleged violation of Establishment

Clause rights was caused by a federal, rather than a state, official. Under

those circumstances, the congressionally-created remedial scheme of

section 1983 would be inapplicable, and a judicially-created remedial

scheme based on Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388, 91 S: Ct. 1999, 29 L. Ed. 2d 619 (1971), in

which a cause of action is implied from the Constitution, would apply.

(The adequate-remedy-at-law problem would of course remain.) In this

case, however, Congress has created a remedial scheme for the

constitutional violation (section 1983) and therefore, in the absence of a

showing that the congressional scheme is inadequate, the courts are to defer

to Congress. See McCarthy v. Madigan, 503 U.S. 140, 151, 112 S. Ct.

1081, 1090, 117 L. Ed. 2d 291 (1992).

*7 “(T]he qualified immunity test is simply the adaptation of the fair

warning standard [from criminal law] to give officials (and, ultimately,

governments) the same protection from civil liability and its consequences

that individuals have traditionally possessed in the face of vague criminal

Statutes.” Lanier, 520 U.S. at 270-71, 117 S. Ct. 1227.

AS6 .

Neither of these responses is generally available in a civil

contempt proceeding. Thus, unless the show cause hearing

were in effect transformed into a new section 1983 suit — with

a jury trial, the opportunity to raise defenses, and so forth — the

court would be violating the doctrine of separation of powers.

The second set of provisions challenged by the

appellants, unlike the first set, was perfectly appropriate for

inclusion in an injunction. Those provisions relate to the district

court’s command that the defendants (in conjunction with the

plaintiffs) nominate three individuals, one of whom would serve

as a monitor for the purpose of ensuring compliance with the

injunction. This is a discrete act that, if not taken, could be

compelled through coercive contempt sanctions (for instance, a

fine of $100 for each day after the deadline that the list of

individuals was not submitted). It was therefore properly the

subject of an injunction.”

8 The unchallenged portions of the injunction are a mix of proper and

improper provisions. For instance, in addition to enjoining the defendants

from “permitting” certain religious activities, it also enjoins them from

or otherwise participating in” those activities. Regardless of which gerund

is chosen, these injunctive provisions still forbid the performance of an act,

defendants to promulgate a written policy relating to religious activity in

schools, to provide the Gideons with a copy of the injunction, and to

conduct a training session to instruct faculty and administrators regarding

the Establishment Clause and the Free Exercise Clause. These provisions

command the performance of specific acts, and are thus, at least in form,

AS7

In conclusion, the first set of injunctive provisions

challenged by the appellants are enforceable only through

punitive or compensatory contempt sanctions. They

consequently raise all of the problems discussed in part I, and

therefore must be vacated. The second set of provisions,

however, raise none of those problems, and, for the reasons

Stated in the majority opinion, should be affirmed.

Il.

The injunction is an important remedial tool, but also

one that has been greatly abused. By using an injunction as an

alternative means of creating criminal and/or civil liability, courts

ignore fundamental equitable and constitutional principles.

Certain injunctive provisions at issue in this appeal illustrate this

problem. I therefore concur in the majority opinion.

perfectly legitimate.

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MICHAEL CHANDLER, et al,

Plaintiffs,

v. CIVIL ACTION NO.

96-D-169-N

FORREST H."FOB" JAMES JR., et al.,

Defendants.

ORDER

Before the court is a "Motion For Partial Stay Of

Permanent Injunction" ("Defs.' Mot.") filed on November 10,

1997 by the Attorney General of the State of Alabama, the

Alabama State Board of Education and its individual members,

and the DeKalb County, Alabama, Board of Education and its

individual members ("Defendants"). Defendants filed a

"Memorandum In Support" ("Defs.' Mem. In Supp.") on the

same date. Plaintiffs filed their "Opposition To ‘Defendants’

Motion To Stay’ " ("Pis.' Opp'n") on November 18, 1997 to

which Defendants filed a Reply ("Defs.' Reply") on November

24, 1997. On the same date, Plaintiffs filed their "Supplemental

Opposition To ‘Defendants' Motion To Stay' " ("Pls.'

Supplemental Opp'n"), and the "Declaration Of Susan Jane

Neely In Opposition To ‘Defendants' Motion To Stay’

Injunction" ("Neely Decl."). On December 5, 1997, Plaintiffs

filed their "Reply To ‘[Defendants'] Reply to Plaintiffs’

Opposition To Defendants’ Motion For Partial Stay,' " ("Pls.'

Reply"), and the Declaration of John Woodfin ("Woodfin

Decl.").! On December 4, 1997, counsel for the DeKalb

County Board of Education and its Superintendent, filed a

"Report to Court of Counsel of DeKalb County Board of

Education, et al." ("DeKalb Sch. Bd. Report To Ct.") On

December 15, 1997, Plaintiffs filed their "Additional Evidence

In Opposition To Defendants' Motion For Stay." ("Pls.' Add.

Evid.").

Defendants move the court, pursuant to Rule 62 of the

Federal Rules of Civil Procedure, for a stay of sections 6(a),

6(b), 6(c), 6(d), 6(e) and 7 of the court's October 29, 1997

Permanent Injunction ("Permanent Inj."), pending review by the

Eleventh Circuit Court of Appeals. (Defs.' Mot. at 1.)

Defendants contend that these sections of the Permanent

Injunction are "vague and overbroad." (Defs.' Mem. In Supp.

at 1.) Plaintiffs argue that the "proscriptions are all specific and

' Woodfin's Declaration was originally filed in handwritten form as Exhibit

B to Plaintiffs' Supplemental Opposition filed November 24, 1997. The

December 5, 1997 filing was typed and formally executed.

under the totality of the circumstances give ... an extremely clear

understanding of the conduct that is proscribed." (Pls.' Opp'n at |

7.) After careful consideration of the arguments of counsel,’as

well as relevant law, the court finds that Defendants’ "Motion

For Partial Stay Of Permanent Injunction" is due to be granted

as to twelve words of the court's three-thousand, seven-hundred

and fourteen word Permanent Injunction, and otherwise denied.

DISCUSSION

On March 12, 1997, the court issued a Memorandum

Opinion and Order finding unconstitutional Alabama Code

‘Section 16-1-20.3, Alabama's fourth incantation of a “school

prayer" statute. Chandler v. James, 958 F. Supp. 1550, 1568

(M.D. Ala. 1997). The challenge to the statute arose in the

context of officially initiated, promoted and/or sanctioned

religious activity that was occurring in the public schools of

DeKalb County, Alabama. On October 29, 1997, the court

issued a Permanent Injunction enjoining various state and local

officials from enforcing Alabama Code Section 16-1-20.3. (See

Permanent Inj. at 1-3.) The Permanent Injunction also

prohibited a variety of officially initiated, promoted and/or

sanctioned activities that the court found to be in violation of the

First Amendment.” (Jd. at 3-12.) Provisions were made to

ensure compliance and to protect the rights of those citizens

who were subject to the activity found unconstitutional. (/d. at

? In addition to the March 1997 Memorandum Opinion and Order, the

court's findings were articulated in its November 1997 Supplemental

Opinion and Order and November 1997 Memorandum Opinion and Order.

3-16.) In the Motion To Stay currently before the court,

Defendants do not challenge those portions of the Permanent

Injunction prohibiting enforcement of Alabama Code Section

16-1-20.3; their challenge is limited to specific sections of the

Permanent Injunction applicable to DeKalb County, Alabama.’

For purposes of clarity, and in order to rectify convoluted

interpretations of the terms of the court's Permanent Injunction,

the court will: (1) state the applicable law; (2) restate the

specific provisions of the Permanent Injunction that are at issue;

(3) summarize the arguments of counsel; and (4) analyze the

arguments of counsel in light of applicable law and the terms of

the Permanent Injunction.

I. APPLICABLE LAW

A. Standard Of Review

Rule 62(c) of the Federal Rules of Civil Procedure provides

that "the court in its discretion may suspend, modify, restore, or

grant an injunction during the pendency of the appeal upon such

terms as to bond or otherwise as it considers proper for the

security of the rights of the adverse party." Fed. R. Civ. P.

62(c). In Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct.

2113, 95 L. Ed. 2d 724 (1987), the Supreme Court stated that:

* The Defendants, speaking through the Attorney General, stated that they

are "not challenging this Court's March 12, 1997 Memorandum Opinion,

the factual record in this matter, or thirty years of controlling legal

precedent.... For purposes of Defendants' Motion For Partial Stay, the

Attorney General is only challenging certain provisions of this Court's

October 29, 1997 Permanent Injunction." (Defs.' Reply at 2.)

ae =

Different Rules of Procedure govern the power of

district courts and courts of appeal to stay an order

pending appeal. See Fed. Rule Civ. Proc. [sic] 62(c);

Fed. Rule App. Proc. [sic] 8(a). Under both Rules,

however, the factors regulating the issuance of a stay

are generally the same: (1) whether the stay applicant

has made a strong showing that he is likely to succeed

on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance

of the stay will substantially injure the other parties

interested in the proceeding; and (4) where the public

interest lies.

Hilton, 107 S. Ct. at 2119 (citations omitted).* These factors

"contemplate individualized judgment in each case, [and] the

formula cannot be reduced to a set of rigid rules." Jd.

Defendants urge the court to also consider their Motion

under what they describe as the "alternate standard" outlined by

the Eleventh Circuit in Garcia-Mir v. Meese, 781 F.2d 1450,

1453 (11th Cir.1986). (Defs.' Mem. In Supp. at 3.) There, the

Eleventh Circuit, as quoted by the Defendants, stated that

"[o]rdinarily the first factor is the most important ... [bJut the

movant may also have his motion granted upon a lesser showing

of a substantial case on the merits when the balance of equities

[identified in factors 2, 3, and 4] weighs heavily in favor of

* The parties agree that these factors guide the court's analysis in assessing

a request for a stay. (See Defs.’ Mem. In Supp. at 3; Pls.’ Opp'n at 5-6.)

granting the stay." (Defs.' Mem. In Supp. at 3 (citing Garcia-

Mir, 781 F.2d at 1453).) Defendants argue that they are “not

only likely to prevail on appeal, but the last three factors weigh

heavily in favor of granting the stay. Therefore, the movants are

entitled to prevail under the Eleventh Circuit's alternate

standard." (/d.)

As an initial matter, the court notes that in Garcia-Mir, the

Eleventh Circuit addressed an "emergency motion to stay" filed

in the court of appeals, rather than in the district court in which

the action originated. Garcia-Mir, 781 F.2d at 1451, 1453; see

also, United States v. Bogle, 855 F.2d 707 (11th Cir.1988)

(applying factors articulated in Garcia-Mir in context of

emergency appeal before the Eleventh Circuit and citing to

Eleventh Circuit Rule 27-1(b)).° The Eleventh Circuit

* Eleventh Circuit Rule 27-1(b) provides:

(b) Emergency Motions.

(1) A party requesting emergency action shall label the

motion as "Emergency Motion" and state the nature of

the emergency and the date by which action is necessary.

The motion or accompanying memorandum shall state

the reasons for granting the requested relief and must

specifically discuss: (i) the likelihood the moving party

will prevail on the merits; (ii) the prospect of irreparable

injury to the moving party if relief is withheld; (iii) the

possibility of harm to other parties if relief is granted;

and (iv) the public interest. Counsel filing the motion

shall make every possible effort to serve the motion

personally; if this is not possible, counsel shall notify

specifically noted the "emergency" nature of the motion to stay

at issue there, and noted the "extraordinarily high standards of

review of motions for emergency stays." /d. at 1451, 1454. In

contrast, the Motion To Stay at issue in this action was filed

with this court, a United States District Court, not the Eleventh

Circuit Court of Appeals, and is in a non-emergency posture.

Utilization of the four Hilton factors in an "emergency"

context ordinarily entails analysis of substantially more

compelling factual and legal circumstances than in ordinary

motions to stay. Predictably, that is why provisions are made

for "emergency" motions, and why the factors may be entitled

to different weight in that context. In an "emergency" appellate

opposing counsel promptly by telephone.

(2) If the emergency motion raises any issué theretofore

raised in a district court, counsel for the moving party

shall furnish copies of all pleadings, briefs, memoranda

or other papers filed in the district court supporting or

opposing the position taken by the moving party in the

motion and copies of any order or memorandum decision

of the district court relating thereto. If compliance is

impossible or impractical due to time restraints or

otherwise, the reason for non-compliance shall be stated.

(3) An emergency motion, whether addressed to the court

or an individual judge, ordinarily should be filed with the

clerk and not with an individual judge. To expedite

consideration by the court in a genuine emergency,

counsel may telephone the clerk and describe a motion

that has not yet been filed in writing. This is not a

substitute for the filing required by FRAP 27(a).

proceeding, emphasis may be placed on the likelihood of success

on the merits, in part because the appellate court must determine

that the trial court below was "clearly erroneous." Garcia-Mir,

781 F.2d at 1453. Once this determination is made, the

likelihood of reversal on appeal may justify granting a stay,

regardless of the other three factors. That is also why a showing

ofa "substantial case on the merits” coupled with the other three

factors weighing heavily in favor of the movant may justify a

stay. See Garcia-Mir, 781 F.2d at 1453. Hence, emphasis on

the first factor, in those contexts, is warranted.

Tellingly, in Hilton, the Supreme Court was not addressing

the standards utilized in "emergency" appellate proceedings, or

"emergency" district court proceedings for that matter, and

made no mention of applying heightened deference to the first

Hilton factor in district court proceedings. Hilton, 481 U.S. at

776-77. The Court was careful to note, however, that

"individualized judgments" must be made in each case, and that

“the formula cannot be reduced to a set of rigid rules." /d. at

776.

Not only do Defendants conveniently fail to note the

emergency, appellate, posture of Garcia-Mir, as opposed to the

non-emergency posture of the Motion To Stay currently in this

court, they also fail to cite the entirety of the Eleventh Circuit's

relevant language in Garcia-Mir (the language quoted by

Defendants is italicized):

We must always be diffident in interposing the power

of an appellate court into the province of the trial court

and its orders save upon full briefing and mature

reflection by this Court. The grant of an emergency

motion to stay the trial court's mandate is thus an

exceptional response granted only upon a showing of

four factors: 1) that the movant is likely to prevail on

the merits on appeal; 2) that absent a stay the movant

will suffer irreparable damage; 3) that the adverse

party will suffer no substantial harm from the issuance

of the stay; and 4) that the public interest will be

served by issuing the stay. Ordinarily the first factor

is the most important. A finding that the movant

demonstrates a probable likelihood of success on the

merits on appeal requires that we determine that the

trial court below was clearly erroneous. But the

movant may also have his motion granted upon a lesser

showing of a "substantial case on the merits" when the

balance of the equities [identified in factors 2, 3, and 4]

weighs heavily in favor of granting the stay.

Garcia-Mir, 781 F.2d at 1453 (citations omitted). The

emphasis placed on the first factor was clearly done in the

context of an "emergency" appellate review of a district court

order. Use of the Garcia-Mir standard by a district court would

essentially require the court to determine that it was clearly

erroneous in issuing a staying of its order(s). Such analysis

would be more appropriate in determining a Rule 59 motion to

alter or amend or a Rule 60 motion for relief from a judgment or

order--not a motion to stay pending appeal.

B10

Regardless of whether the court applies the Hilton factors

without emphasis on one over the other, or whether the court

applies the Garcia-Mir heightened emphasis on the first factor

standard, an "individualized judgment" under either leads the

court to the conclusion that Defendants’ Motion To Stay is due

to be granted as to twelve words of the court's three-thousand,

seven-hundred and fourteen word Permanent Injunction, and

otherwise denied. See Hilton, 481 U.S. at 776.

The first Hilton factor entails analy

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