Joann BELL and Lucille McCord, Plaintiffs-Appellees-Cross-Appellants,
v.
The LITTLE AXE INDEPENDENT SCHOOL DISTRICT NO. 70 OF
CLEVELAND COUNTY; the Board of Education of the Little Axe
Independent School District No. 70 of Cleveland County,
Elizabeth Butts, Henry Johnson, Charles Littlejim, Bill
Scott, individually and as members of the Board of Education
of Little Axe Independent School District No. 70 of
Cleveland County; and Michael Luther, as a member of the
Board of Education of Little Axe Independent School District
No. 70 of Cleveland County; and Charles D. Holleyman,
individually and as former superintendent of Little Axe
Independent School District No. 70 of Cleveland County; and
Paul Pettigrew, individually and as superintendent of Little
Axe Independent School District No. 70 of Cleveland County;
and Larry Garner, individually and as former elementary
principal of Little Axe Independent School District No. 70
of Cleveland County; and Randall Prestgrove, individually
and as elementary principal of Little Axe Independent School
District No. 70 of Cleveland County,
Defendants-Appellants-Cross- Appellees.
Nos. 83-1458, 83-1493.
United States Court of Appeals,
Tenth Circuit.
June 26, 1985.
Micheal Salem of Rawdon and Salem, Norman, Okl., for the American Civil Liberties Union of Oklahoma for plaintiffs-appellees-cross-appellants.
Ruti G. Teitel, Anti-Defamation League of B'nai B'rith, New York City (Justin J. Finger and Jeffrey P. Sinensky, Anti-Defamation League of B'nai B'rith, New York City, and Marc D. Stern, American Jewish Congress, New York City, of counsel), as amici curiae for plaintiffs-appellees-cross-appellants.
William D. Graves, Oklahoma City, Okl., for defendants-appellants-cross-appellees.
Lee Boothby, Attorney for Americans United for Separation of Church and State, Berrien Springs, Miss. (Robert W. Nixon, Washington, D.C., of counsel), filed an amicus brief for plaintiffs-appellees-cross-appellants.
Charles E. Rice of Notre Dame Law School, Notre Dame, Ind., filed an amicus brief for defendants-appellants-cross-appellees.
Samuel E. Ericsson and Kimberlee W. Colby, Attorneys for the Center for Law & Religious Freedom of the Christian Legal Society, Springfield, Va., filed an amicus brief for defendants-appellants-cross-appellees.
Before HOLLOWAY, Chief Judge, and BARRETT and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
Plaintiff parents Joann Bell and Lucille McCord sued the Little Axe Independent School District,1 the school board and its individual members, and several administrative officials (the District) under 42 U.S.C. Sec. 1983 (1982), claiming that various District policies and practices violated the Establishment Clause of the First Amendment. In their initial complaint, Bell and McCord sought injunctive relief against the District for permitting religious meetings to be held on school premises during school hours and for permitting the distribution of Bibles at the school. They also sought a declaration that the Oklahoma voluntary prayer statute, Okla.Stat. tit. 70, Sec. 11-101.1 (1981), was unconstitutional. When the District subsequently adopted an equal access policy, in part as a response to this lawsuit, Bell and McCord amended their complaint to challenge the policy and to request damages for the alleged violations of their civil rights.
Following a non-jury trial, the district court enjoined the religious meetings but found the Bible distribution claim to be moot. It further held that the District's policy was not facially unconstitutional and that the state prayer statute was never at issue since the District denied reliance on it for its actions. The court also refused to award either compensatory or punitive damages.
Both parties now appeal. Bell and McCord assert that the district court should have granted relief on all claims. The District, in turn, argues first that plaintiffs had no standing to bring this action, and second that enjoining the meetings violated the students' freedom of speech and religion. We affirm the district court in most respects but reverse and remand on the issue of damages.
I.
BACKGROUND
Joann Bell and Lucille McCord each have several children who have attended Little Axe School. During the 1980-81 school year, their children told them of certain religious meetings held before class every Thursday morning. Testimony in the record indicates that other students asked the Bell and McCord children why they had not chosen to attend the meetings, asserting that they therefore must not believe in God. Consequently, Bell and McCord notified defendant Holleyman, then school superintendent of the district, of their concern. Upon investigation, he found that several teachers were supervising and participating in religiously-oriented meetings involving students and non-students on Thursdays between 8:00 and 8:25 a.m. He ordered the meetings suspended until the school board could consider the matter.
The meetings had been started by several students and a faculty sponsor so "that youth would be influenced in a positive way to seek God and good in their own lives and in others."2 Pl.Ex. 35. The meetings were advertised by posters in the halls and announcements in school publications.3 Between five and forty students, including elementary age schoolchildren, attended the meetings that began shortly after school buses arrived.4 Speakers sometimes appeared at the invitation of a student, but usually at the behest of a teacher or a person unrelated to the school. The speakers included a minister, local athletes, and others speaking about how God and Christianity had benefited the speaker in his or her daily life. The program also included prayers, songs, and "testimony" of students and other individuals concerning the benefits of knowing Jesus Christ.
The school board first considered the issue at a board meeting in April 1981 before an agitated crowd. On a 4-1 vote, the board decided to permit the meetings to continue until such time as the meetings were declared unlawful. Prior to the vote, the dissenting board member, Sheri Lambeth, expressed her concern that the meetings were against the law and that the board was obliged to uphold the law. Another board member shared Lambeth's concern that the meetings were unlawful, but voted to continue them. Following the vote, the board president, Elizabeth Butts, exclaimed, "bring on the ACLU." Tr., vol. I, at 35-36. At no time did the board or the administration solicit a legal opinion as to the constitutionality of the meetings. The meetings resumed, and the plaintiffs filed this action.5
After initiating this lawsuit, both plaintiffs received numerous threatening telephone calls and letters. Their children were called "devil-worshippers" by other students and, in one instance, an upside-down cross was hung on Robert McCord's locker. At the school sports banquet, their two sons who had played football, basketball, and baseball, were the only two children who were not recognized by name as being Little Axe athletes. Joann Bell was the victim of a hair pulling incident committed by a school employee and, in September 1981, the Bells' home was destroyed by a fire of suspicious origin.
The meetings continued during this time. In November 1981, the board adopted an equal access policy purporting to regulate the student use of school facilities. Although board members generally asserted that they adopted the policy to ensure freedom of speech and religion for the students and to clarify past unwritten policy, at least one member favored the policy, in part, so that the meetings would be allowed to continue. Tr., vol. V, at 986. At the meetings conducted pursuant to this policy, teachers were designated as monitors rather than sponsors or supervisors and were not permitted to participate. The school, moreover, disclaimed sponsorship of the group. A student committee was formed to solicit speakers, but the format remained unchanged.
Shortly thereafter, plaintiffs amended their complaint to challenge the new policy and to seek damages for the alleged unconstitutional acts of the District. The harassment persisted and was severe enough to force plaintiffs and their families to move into the adjoining school district for the 1982-83 school year. The meetings continued until October 1982, when the District agreed to suspend the meetings and implementation of the policy pending resolution of the merits at trial.
II.
STANDING
At every step of this litigation, the District has asserted that plaintiffs lack standing to raise an Establishment Clause challenge to the meetings, the policy, or the Oklahoma voluntary prayer statute. The district court disagreed, rejecting the District's argument that plaintiffs had no individual standing or, alternatively, that plaintiffs had lost whatever standing they had when they moved out of the district.
As the Supreme Court recently explained, "the term 'standing' subsumes a blend of constitutional requirements and prudential considerations, ..." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.,
Although Valley Forge rejected a claim of taxpayer standing to raise an Establishment Clause challenge, the Court nevertheless discussed specifically the kind of parental claim raised by Bell and McCord. The Court recognized the standing of parents of schoolchildren "who are directly affected by the laws and practices against which their complaints are directed." Valley Forge,
In this case, plaintiffs Bell, a member of the Church of the Nazarene, and McCord, a member of the Church of Christ, testified that, as parents, they have the right to guide their children's religious education without interference at school. The district court concluded that "[t]his Court can see no reason why parents cannot, on their own behalf, assert that the state is unconstitutionally acting to establish a religious preference affecting their children." Rec., vol. IV at 1176. We agree. These parents are not merely "concerned bystanders," see Valley Forge,
Nevertheless, the District argues that Bell and McCord lost this standing when they moved from the Little Axe School District and enrolled their children in a neighboring district. The District cites Doremus v. Board of Education,
III.
THE MEETINGS AND THE EQUAL ACCESS POLICY
When Bell and McCord first brought suit, they alleged that defendants had permitted and encouraged religious services upon school premises during the school day. After the board adopted the equal access policy to regulate student activities, Bell and McCord amended their complaint to challenge the policy as well. The policy provides as follows:
"Use of school facilities by students who meet religious, political or other Constitutionally protected purposes shall be permitted in accordance with the following principles and guidelines:
"1. Little Axe Public Schools shall not discriminate against any student, teacher, staff member or other employee on the basis of race, color, creed, religion, sex or national origin in the assignment or use of school facilities.
"2. Little Axe Public Schools shall not deny any student or employee, in the use of school facilities, the Constitutional guarantees of freedom of religion, speech, the press, association, petition and equal protection of the laws or restrict these freedoms in any manner except as essential in the performance of the school's educational purposes, to avoid substantial interference with the necessary school discipline.
"3. All students, whether as school sponsored clubs, nonsponsored student associations or individuals shall have equal access to school facilities under neutral regulations regarding the time, place and manner of use, for proper allocation of available space and supervision.
"4. No school shall sponsor or officially endorse any political or religious practice or activity by any student or employee nor sponsor or officially recognize any student club which meets for political or religious purposes. Lack of official sponsorship, endorsement or recognition shall not be used to deny any student or nonsponsored student association equal access to school facilities. Presentation of material having religious or political content as part of the academic or cultural activities of a school shall not constitute official sponsorship, endorsement or recognition.
"5. Little Axe Public School shall not compel any student to participate in a religious or political activity. No student or employee shall intentionally deceive or coerce a student to attend a religious or political meeting or to adopt a particular religious or political belief or ideology.
"6. Student use of school facilities shall not be regulated on the basis of the content of the students' meetings, except that the school may terminate meetings which are immoral, violent (or advocate violence) or interfere with the educational process. Religious speech shall receive the same rights and protections as political and all other speech, including private voluntary prayer, reading from religious or political books and speaking about political or religious topics. The school may prohibit outside speakers at student meetings if the school affirmatively finds that the appearance of the speaker will incite violence or interfere with the educational process.
"7. School employees, while acting in their official capacities and performing their duties as school employees, shall not sponsor, support or participate in political or religious practices or activities involving students. Before or after school hours and during lunchtime, work breaks or any other time when a school employee may use his time for personal purposes, employees may engage in political and religious practices and activities, including those involving students.
"8. All students [sic] use of school facilities shall be supervised, as necessary, by the school to maintain order on the school premises. Student activities sponsored by the school may be supervised by the sponsoring individual or another school employee. Nonsponsored student activities shall be supervised in the same manner as the school supervises student behavior generally, as in hallways, lounges, study rooms, libraries, lunchrooms or open areas on the campus, or the school may assign an employee to attend and supervise the activity as an observer.
"9. The school may publish the times and locations of the meetings of all school sponsored clubs, nonsponsored associations or students who have been assigned use of school facilities, but the school shall not otherwise announce or report the activities of any nonsponsored student groups in official school publications. All student activities, including nonsponsored activities, may be announced or reported in any student publications or through use of any permitted means of student communication, such as bulletin boards, posters, flyers and oral announcements.
"10. The school may prohibit or regulate in any manner the collection or expenditure of money by or on behalf of any student, nonsponsored student association or school sponsored club relating to any activity that takes place in school facilities or on school premises."
Pl.Ex. 19.
After November 1981, the meetings were conducted pursuant to this policy. In March 1983, the district court enjoined the meetings, but held the policy facially constitutional. We affirm, but only insofar as the policy is construed to prohibit concerted religious activity on the school grounds during the school day.
A. The Students' Free Speech Rights
In defense of the meetings and the policy, the District asserts the students' complementary First Amendment rights of freedom of speech and religion.6 Although the First Amendment clearly protects religious worship and discussion, Widmar v. Vincent,
Accordingly, we must analyze the First Amendment rights of the Little Axe students "in light of the special characteristics of the school environment," id. at 267 n. 5,
The Supreme Court recently identified a university campus as a limited forum because of its policy of accommodating meetings of student organizations. Widmar,
The reservations expressed in Bender apply with even greater force to an elementary school,7 where the curriculum is far more circumscribed. More importantly, most school children are unable to appreciate or initiate a wide diversity of viewpoints, as demonstrated by the relatively few student organizations that actually meet at Little Axe School, such as Girl Scouts, Boy Scouts, and 4-H Clubs.
Nevertheless, we are reluctant to hold that an elementary school administration may never create a limited forum for the benefit of its students. The policy governing Little Axe School purports in paragraph 2 to guarantee all students and employees "freedom of religion, speech, the press, association, petition and equal protection," rights which the policy provides may not be restricted "except as essential in the performance of the school's educational purposes." The policy, therefore, does not compromise the primary educational purpose of the school. See Widmar,
B. The Establishment Clause
We approach the task of deciding whether the Establishment Clause requires enjoining the meetings of the Son Shine Club with appreciation for the difficulty of "[preventing], as far as possible, the intrusion of either [the church or the state] into the precincts of the other." Lynch v. Donnelly,
"The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools, to avoid confusing, not to say fusing, what the Constitution sought to keep strictly apart. 'The great American principle of eternal separation'--Elihu Root's phrase bears repetition--is one of the vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. It is the Court's duty to enforce this principle in its full integrity."
McCollum v. Board of Education,
In determining whether the meetings as conducted pursuant to the policy violated the proscription of the Establishment Clause, the district court applied the test first articulated in Lemon,
1. Secular Purpose
The District asserts a secular purpose in the commitment to protecting the students' freedom of speech and religion. The testimony of the individual defendants generally supports this assertion. The district court found to the contrary, however, and we agree. The District's behavior belies its avowed secular purpose and indicates that the policy was actually adopted to conceal a pre-eminent religious purpose.
The District contends that the policy was adopted merely to clarify a former unwritten equal access policy. Yet several witnesses, including several defendants, testified that either they were unaware of a prior policy or did not know what the policy provided. In fact, during the time of the supposed unwritten policy, at least two student groups were denied access to school facilities. Moreover, following the adoption of the policy, certain aspects of the meetings changed: teachers were told they could no longer participate and were designated as monitors rather than supervisors or sponsors; and a student committee was formed to solicit speakers, thereby replacing the previous active involvement of the teachers. If the earlier policy was substantially the same, we can only assume that it was not enforced at meetings of the Son Shine Club.
Most importantly, the District's ultimate motive is revealed by its subsequent implementation of the policy. In October 1983, seven months after the district court enjoined the meetings, the school administration required the junior high classes to attend a religious assembly at approximately 1:00 p.m. At the assembly, a local minister introduced an evangelist known as "Yo-Yo" Collins who spoke to the assembled students. After he and his wife led the students in a variety of modern religious songs, Mr. Collins "testified" about an accident that had physically disabled him and about how God had loved him and helped him. He then invited the students to attend an ongoing revival that evening at the Little Axe Baptist Church. He also offered them autographed pictures, literature, and records which were handed out during and after his speech.8
When plaintiffs sought a contempt citation for this apparent violation of the injunction, the District justified the assembly as a cultural activity with religious content specifically permitted by paragraph four of the policy which, the District argued, had been held facially constitutional by the district court. The District also justified the assembly by pointing to the district court's suggestion that religious meetings might be appropriate if held at other hours of the day, despite the plain language of the court's opinion that the other hours must be those following the hours of compulsory attendance. Most preposterously, the District argued that the assembly was not the same type of activity encompassed by the injunction, asserting the following distinctions. First, the meetings of the Son Shine Club occurred before classes actually started whereas the assembly was held in the middle of the school day. Second, the meetings were directed by the students themselves, while the assembly was initiated by the administration. Third, the meetings were voluntary and no classes or extracurricular activities were cancelled for the purpose of facilitating attendance; in contrast, classes were cancelled to compel student attendance at the assembly. The district court correctly characterized the District's contention as "so patently absurd that it is unworthy of further comment," and held the "religious meeting" to constitute an act prohibited by the injunction.9 Order, November 30, 1984, at 2.
The District's blatant disregard for the clear import of the court's injunction convinces us that the District's "pre-eminent purpose" in permitting these meetings to be held was religious in nature and that the policy was adopted to conceal that purpose. "[N]o legislative recitation of a supposed secular purpose can blind us to that fact." Stone v. Graham,
2. Primary Effect
The district court also found that the District's action had the primary effect of advancing religion. "What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion." Lynch,
Widmar concluded that, in the context of a public university, any benefits deriving from an open forum that permitted religious meetings would be incidental in nature and would confer no imprimatur of state approval on the religious practices. Widmar,
Based on these factors, Bender distinguished the university setting from that of a high school, finding that the latter presents "heightened dangers in the context of the Establishment Clause." Bender,
We believe that an elementary school cannot be compared to either a university campus or a high school. Elementary schoolchildren are vastly more impressionable than high school or university students and cannot be expected to discern nuances which indicate whether there is true neutrality toward religion on the part of a school administration.11 A child, for example, is unlikely to distinguish any difference between school sponsorship and mere faculty supervision.12 Although under the policy teachers no longer actively participate in the meetings, they had previously done so, and several continued to attend each meeting. Since the policy requires only one teacher to monitor student meetings, the attendance by several teachers unmistakably expressed their personal endorsement of religion and, by implication, that of the school. We believe that the presence of even one teacher would produce the same aura of school authorization and approval.
Moreover, in contrast to the fluid environment of a university campus, the highly structured environment of the Little Axe School furthered the appearance of school endorsement of the Son Shine Club. Few other student organizations ever met at the school, and none met during the morning between the arrival of the buses and the first class. Although virtually all students arrived between 8:00 and 8:10 a.m., they were not permitted inside the building except to attend meetings of the Son Shine Club.13 In addition, posters prominently displayed in the halls advertised the religious nature of the meetings and invited students to participate. Students not only were aware of the meetings, they could not avoid contact with participants.14
These considerations reveal that meetings of the Son Shine Club conferred an imprimatur of state approval on religion in the Little Axe School District. "To an impressionable student, even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed. This symbolic inference is too dangerous to permit." Lubbock,
The District argues that since these meetings were voluntary, any false impression of school endorsement was removed. We disagree. This fact is not relevant to Establishment Clause analysis.
"Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause.... When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain."
Engel v. Vitale,
"[t]his comment has special force in the public-school context where attendance is mandatory.... 'That a child is offered an alternative may reduce the constraint, it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school's domain. The law of imitation operates, and non-conformity is not an outstanding characteristic of children.' See also Abington School District v. Schempp,
Nor does it matter that the meetings took place before classes actually began. The students were under the control and supervision of the school from the moment they boarded the school bus. See Okla.Stat. tit. 70 Sec. 6-114 (1981). Even more critically, it was the "compulsory education machinery that [drew] the students to school and [provided] any audience at all for the religious activities, whether the buses [had] run or the school day 'officially' begun." Lubbock,
Despite the District's consistent disavowal of sponsorship, these individual elements indicate an overwhelming aura of endorsement and approval of the meetings on the part of the school administration, resulting in the students' inevitable perception of prayer as a "favored practice." Cf. Wallace, --- U.S. at ----,
3. Excessive Entanglement
The final inquiry under the Lemon test focuses on whether the District's action in permitting the meetings avoided excessive entanglement with religion. "The objective is to prevent, as far as possible, the intrusion of either [the church or state] into the precincts of the other." Lemon,
In resolving this issue, our attention is again drawn to the requirement that the school monitor all student meetings. This provision was notably absent from the university policy in Widmar, but contributed to the findings of entanglement in both Bender and Lubbock. See Bender,
In addition to the monitoring requirement, the policy requires the administration to scrutinize the content of meetings and to terminate those "which are immoral, violent (or advocate violence) or interfere with the educational process." Pl.Ex. 19, p 6. Again, while this kind of administrative determination might be appropriate for any other student meeting, it would require a determination by the administration as to whether any particular religious content is immoral, violent, or likely to interfere with the educational process. We believe any such determination would necessarily entangle the administration in deciding religious issues.
These and a number of other factors indicate the "intimate and continuing relationship" between the school and the Son Shine Club. See Lemon,
A final consideration in determining whether state action has become excessively entangled in religion is the question of political divisiveness within a community. See Lemon,
We also believe that in a public school that includes elementary-age schoolchildren, a violation of the Establishment Clause of this degree offers a sufficiently compelling interest to justify a content-based distinction in the limited forum created in this case. See Widmar,
We further hold that the policy promulgated by the District is unconstitutional insofar as the District or the school construes it to permit concerted religious activity on the school grounds during the school day. Those sections which specifically protect such religious activity cannot withstand scrutiny under the Establishment Clause. By this holding we do not express hostility toward religion as the District fears. We recognize that accommodation is necessary in some instances to balance competing constitutional interests. See Lynch,
IV.
VOLUNTARY PRAYER STATUTE AND BIBLE DISTRIBUTION
Bell and McCord additionally sought to have the Oklahoma voluntary prayer statute, Okla.Stat. tit. 70, Sec. 11-101.1 (1981), declared unconstitutional and unenforceable. The district court declined to do so, finding that the District had not relied on the statute in its actions. Because our examination of the record does not reveal this finding to be clearly erroneous, see Fed.R.Civ.P. 52(a), we find no abuse of discretion in the court's refusal to issue an injunction. See United States v. W.T. Grant Co.,
Plaintiffs also alleged that the District had permitted Bibles provided by the Gideon International Organization to be distributed to students in 1981. They sought to enjoin further distribution. At trial, defendants stipulated that no such distribution had occurred since that time; that the Gideons had said they would no longer distribute Bibles at Little Axe or any other school in Oklahoma; and that defendants had no plans or policy to distribute Bibles from any source. The court therefore found the issue of Bible distribution to be moot. This finding is not clearly erroneous, and again we find no abuse of discretion by the trial court.
V.
DAMAGES
A. Compensatory Damages
In their amended complaint, Bell and McCord sought $20,000 in actual damages from the individual defendants for the violation of their constitutional rights. The district court denied that request, concluding that "the defendants' actions in adopting the policy at issue cannot be said to have been the proximate cause of any injuries inflicted by others." Rec., vol. IV, at 1185. It appears from the record that the court only considered incidents such as the hair pulling, house burning, and threats by third parties in determining that no causal relationship had been established between the Establishment Clause violations by defendants and plaintiffs' injuries. We believe that the court viewed the issue too narrowly.
A distinction must be made between the injuries caused by others and those inflicted by the actions of defendants that violated the Establishment Clause. For the reasons set out below, we believe that plaintiffs are entitled to recover compensatory damages for the loss of the inherent value of their rights under the Establishment Clause, even if they are unable to demonstrate consequential injury.
The resolution of this issue follows from the Supreme Court's analysis in Carey v. Piphus,
"It is not clear, however, that common-law tort rules of damages will provide a complete solution to the damages issue in every Sec. 1983 case. In some cases, the interests protected by a particular branch of the common law of torts may parallel closely the interests protected by a particular constitutional right. In such cases, it may be appropriate to apply the tort rules of damages directly to the Sec. 1983 action. In other cases, the interests protected by a particular constitutional right may not also be protected by an analogous branch of the common law of torts. In those cases, the task will be the more difficult one of adapting common-law rules of damages to provide fair compensation for injuries caused by the deprivation of a constitutional right.
"Although this task of adaptation will be one of some delicacy--as this case demonstrates--it must be undertaken. The purpose of Sec. 1983 would be defeated if injuries caused by the deprivation of constitutional rights went uncompensated simply because the common law does not recognize an analogous cause of action. In order to further the purpose of Sec. 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question--just as the common-law rules of damages themselves were defined by the interests protected in the various branches of tort law. We agree with Mr. Justice Harlan that 'the experience of judges in dealing with private [tort] claims supports the conclusion that courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of [constitutional] rights.' Bivens v. Six Unknown Fed. Narcotics Agents, supra [
Id. at 258-59,
The Court analyzed the nature of procedural due process rights, emphasizing that "[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property." Id. at 259,
It is precisely the unusually technical nature of a procedural due process violation that can lead to the ambiguity in causation that concerned the district court.17 Such ambiguity provoked a need for the plaintiffs in Carey to prove that they actually suffered distress. The Court concluded that, in the context of a procedural due process violation, "neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused." Id. at 264,
This Circuit held without elaboration in Corriz v. Naranjo,
Relying on Carey 's warning that the proper damage award may vary depending on the nature of the constitutional right at issue, the Eighth Circuit used this analogy to uphold an award of presumed damages for a plaintiff who had suffered similar deprivations. See Herrera v. Valentine,
"Our aim here is simply to distinguish the substantive rights involved in this case from the right that was involved in Carey. The Court in Carey determined that the procedural right at issue there was nothing more than a mechanical process designed to avoid the mistaken or wrongful infringements of other substantive constitutional guarantees. In this case, by contrast, substantive constitutional rights, highly prized in our federal system of government, are clearly at stake."
Id. at 1230 (emphasis in original). The court viewed part of the plaintiff's injury as the loss of her rights: "To secure complete satisfaction, damage awards must take account of the intrinsic dimension that envelopes each substantive constitutional right." Id. at 1228. The damage award was therefore necessary to vindicate fully those rights. "Many substantive constitutional guarantees may be violated without accompanying consequential or 'actual' injury. If consequential injury were the touchstone for substantial compensatory awards, many blatant constitutional violations would remain unredressed." Id. at 1228 n. 7; see also Owen v. Lash,
Analogizing deprivations of these rights to dignitary torts, the Herrera court recognized that it is difficult to place a value on injuries resulting from invasion of dignitary expectations since they are often not economic losses. Herrera,
The present case, however, involves interests that are not directly analogous to dignitary torts. The First Amendment protects "the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience." Wallace, --- U.S. at ----,
Before Carey, several courts recognized the intrinsic value of First Amendment rights. In Tatum v. Morton,
"The right to demonstrate is a significant strand of the cluster of First Amendment rights. The vindication of these rights warrants more than token acknowledgement.... Compensatory damages embrace more than recompense for monetary injury ... as is evident from amounts for pain, suffering, and humilation.... It is in the public interest that there be a reasonably spacious approach to a fair compensatory award for denial or curtailment of the right to demonstrate. The district court's limited approach cannot stand."
Id. at 1282.
In a similar case, Dellums v. Powell,
"no less administrable than damage awards for other intangible interests protected by the Constitution or at common law. The interest in freedom from apprehension of immediate invasion of one's person, protected for hundreds of years by the law of assault, is only one example of a non-quantifiable interest whose recompense in money damages is routinely left to a jury under proper instructions. The interest protected by the First Amendment in the context of this case is no less certain of quantification or conceptualization."
Id. at 195.
It is thus apparent that prior to Carey deprivations of First Amendment rights were compensable by substantial, although not extravagant, damage awards. Carey, however, directs us to look for an analogous common law tort that permitted recovery of presumed damages.20 We believe that voting rights provide the appropriate analogy for First Amendment deprivations.21 Like the First Amendment,22 voting rights assure a person of the right to express opinion and the right to participate in the public forum. See generally L. Tribe, American Constitutional Law, ch. 13 (1978). The deprivation of the right to vote has long been awarded substantial damages without requiring proof of consequential injury. See Note, Constitutional Torts, 93 Harv.L.Rev., at 969 & n. 16; Annot.,
These cases uniformly recognize the inherent value of the right to vote, a right of public participation that evokes many of the same interests protected by the First Amendment, including the Establishment Clause. Just as the right to vote renders our government accountable for its political actions, the Establishment Clause renders the government accountable for its actions that cultivate religion. The Establishment Clause, if anything, is broader in its protection, since it emphatically rejects the principle of majoritarian rule. To ensure full vindication of these rights, and to deter similar violations, we believe that a plaintiff need not prove consequential injury to recover damages for the violation of a First Amendment right. As Justice Holmes has pointed out, "the deprivation of a [person's] political and social rights properly may be alleged to involve damage to that amount, capable of estimation in money." Giles v. Harris,
Punitive damages do not serve fully the deterrent purposes of section 1983. See Owen v. City of Independence,
B. Punitive Damages
The district court concluded that "the defendants ... were not guilty of such 'willfulness' or 'maliciousness' as required by law to entitle plaintiffs to the punitive damages they seek." Rec., vol. IV, at 1185. In Smith v. Wade,
In conclusion, we affirm the judgment of the district court enjoining the meetings of the Son Shine Club or any concerted religious activity held on the school grounds during school hours. Insofar as the equal access policy permits such activity, it is unconstitutional. We also affirm the judgments refusing to enjoin the enforcement of the Oklahoma voluntary prayer statute, Okla.Stat. tit. 70, Sec. 11-101.1 (1981), and the distribution of Bibles on school property. We reverse the denial of compensatory and punitive damages. On remand the court should consider an award of compensatory damages that is reasonable in light of the nature and extent of the particular invasion of Bell's and McCord's rights under the First Amendment. The court should also consider whether the actions of the individual defendants manifested a reckless or callous indifference for those rights. Finally, the court should determine and enter an award of appropriate attorneys fees to the Oklahoma ACLU for this appeal. The costs of this appeal will be borne by the District.
Affirmed in part, reversed and remanded in part.
BARRETT, Circuit Judge, dissenting in part.
I write separately because I am concerned that the district court likely may, upon remand, feel compelled to instruct the jurors that they may return any amount of damages based upon the bare deprivation of the plaintiffs' First Amendment rights. Although the majority recognizes this problem in quoting from the Dellums case--a damage award "must be proportional to the loss involved insofar as it seeks to compensate intangible injuries. The jury cannot simply be set loose to work at its discretion informed only by platitudes about priceless rights," maj. op. at 1411--it offers no guidance whatsoever to the district court for purposes of instructing the jury as to the measure of damages flowing from the bare deprivation. I can only assume that, because the deprivation is constitutional in nature, the jury is to infer that the award itself must be of "constitutional" magnitude. Furthermore, because I read Carey as establishing nonpresumption of damages as the rule rather than the exception, and because I believe that the interests protected in Carey are analogous to the interests at stake here, I dissent from that portion of the majority opinion which would award the plaintiffs substantial damages without proof of actual injury.
In Carey v. Piphus,
The Court began its analysis with a conclusion reached by the Court of Appeals that was not disputed by the parties: that if, upon remand, the defendants could prove that plaintiffs would have been suspended even if a proper hearing had been held, then the plaintiffs would not be entitled under Sec. 1983 to recover damages to compensate them for injuries caused by the suspension. Under these circumstances, the Court of Appeals reasoned and the Supreme Court agreed that "the failure to accord procedural due process could not properly be viewed as the cause of the suspensions." Id. The award of damages under such circumstances would constitute a windfall, rather than compensation, to the plaintiffs. Id.
The Court then turned to the Court of Appeals' further holding that the plaintiffs could recover substantial damages for "the injury which is inherent in the nature of the wrong," (citation omitted), even if their suspensions were justified and even if they failed to prove that the deprivation actually caused them some real, though intangible, injury. Id. at 260-261,
Inasmuch as presumed damages were at common law "an oddity of tort law," it is fair to conclude that nonpresumption of substantial damages for violations of constitutional rights is the rule rather than the exception in Sec. 1983 actions. It is in this context that we must consider the facts of the present case in relation to the interests at stake.
Here, as in Carey, in the posture in which this case is before us, there is no proof of injury stemming from the bare deprivation of plaintiffs' constitutional rights. Plaintiffs here sought $20,000 in actual damages for the alleged infringement of their First Amendment rights, but their only proven damages were those stemming from the actions of third parties--hair pulling, house burning, and various threats. The district court properly denied plaintiffs any damages for these injuries for that very reason--i.e., that the injuries alleged were caused by third parties, not by the District. Nonetheless, in seeking compensation for these injuries, it is clear that the plaintiffs themselves at least believed these injuries to be their compensable injuries flowing from the actions of the District. Consequently, the exact nature and extent of the plaintiffs' injuries, as well as the causal link between the actions of the district and what, if any, injuries the plaintiffs suffered as a result of those actions, is ambiguous. In the words of the Supreme Court, this is an ambiguity which "provides additional need for requiring the plaintiff to convince the trier of fact that he actually suffered distress because of the denial of [the First Amendment right] itself." Carey,
Furthermore, the interest at stake in Carey is analogous to the interest at stake here. Although the majority acknowledges that procedural due process protects not only the deprivation itself but the mistaken or unjustified deprivation of life, liberty, or property, maj. op. at 1409, it seems to imply that there is nothing substantive, nothing touching upon an individual's feelings and emotions, that inheres in the concept of procedural due process. The Supreme Court, however, rejected any such notion in Carey, recognizing "that a purpose of procedural due process is to convey to the individual a feeling that the government has dealt with him fairly, ...."
It taxes the imagination, then, to attempt to differentiate "the feeling of being treated fairly" from the "freedom of conscience" uniting the cluster of interests at the heart of the First Amendment.1 This is not to say, however, that the interests protected by the right to vote are not also analogous to either of these interests. In effect, what the majority is saying is that it "hurts" more if one's "freedom of conscience" or his right to vote is infringed upon than it does if one's "feeling of being treated fairly" is infringed upon. In my mind, such distinctions are wholly artificial, in no way serving to enhance the purpose behind Sec. 1983 of compensating injury. All of these interests, in a general way, assure an individual the feeling of fair treatment. To that extent, the interests at issue here are analogous to the interests at issue in Carey. Consequently, the plaintiffs here should be required to prove their damages.
Moreover, the majority is simply incorrect when it states that in Corriz v. Naranjo this Court held, without elaboration, "that presumed damages are available for violations of substantive constitutional rights." Maj.Op. at 1409. On the contrary, the majority opinion in Corriz went to great lengths to justify the award of substantial damages without proof of actual injury:
In any event, plaintiff produced sufficient evidence of actual damages in this case to justify a substantial compensatory award under Count One. Plaintiff proved his medical expenses and loss of earnings. He testified that he was afraid that he might go to prison during the period that the false charges were pending; he lost interest in recreational activities; he can only do light work; he has suffered personality changes and has lost confidence in himself; he has begun to drink heavily; he has a constant irrational fear of police officers; he has trouble sleeping and he has a recurring nightmare in which the police shoot at him and his brother and kill his brother. A psychiatrist testified that plaintiff suffers from traumatic neuroses from which he may never recover and recommended a year of therapy. Defendants called no witnesses to rebut the evidence of psychological injury. Although some of these damages are not quantifiable with precision, they are nevertheless actual damages which could support the compensatory award in this case.
In my view, the Fifth Circuit followed the correct approach in First Amendment cases in Familias Unidas v. Briscoe,
Irma Torrez seeks $10,000 damages for violation of her association rights. The district court found, however, that Torrez failed to prove any actual, compensable injury stemming from the receipt of the section 4.28 demand for disclosure. After a thorough review of the record, we cannot conclude that this finding was clearly erroneous.
Finally, although any injuries flowing from a denial of the Establishment Clause violation here probably will be intangible--mental and emotional distress--as the Supreme Court recognized in Carey such injuries are well-known to the law and may be evidenced by one's conduct and observed by others.
Upon remand, the plaintiffs should be required to prove the damages resulting from the denial of their First Amendment rights. Absent such proof, they would be entitled to recover nominal damages only, not to exceed one dollar. See Carey,
Notes
The Little Axe School District No. 70 of Cleveland County, Oklahoma, operates one school for kindergarten through grade nine
Initially known as the "Son Shine Club," these meetings have been described variously as fellowship, prayer sessions, prayer meetings, religious sessions, sharing time, religious meetings, devotional exercises, and, as defendants prefer, sharing sessions. On the agenda handed out at one school board meeting, they were referred to as "Prayer Service/Activity." Pl. Ex. 7
One poster, decorated with a cross, announced that Mike Weddington, an Oklahoma University football player, would share his Christian beliefs with the students. Mr. Weddington subsequently recounted to the students that while in high school he told the Lord that he would serve him if given the ability to play football. He further said that in two months he grew from 5'11"' to 6'1"' and from 160 lbs. to 190 lbs., while increasing his speed from five seconds flat to four and a half seconds in the forty yard dash
Another poster portrayed one of the Little Axe teachers saying that she had seen a vision of Jesus Christ and had been anointed by him to lead the students of Little Axe to him. Tr., vol. I, at 32-33.
Virtually all students arrived in school buses between 8:00 and 8:10 a.m. Students attending the meetings could go directly into the building. Otherwise, students had to remain outside, although the gym was opened during bad weather. Students were not actually late until 8:30 a.m. when classes began, but teachers were on duty beginning at 8:00 a.m
Sheri Lambeth, the dissenting board member, was named as a defendant in her official capacity only and was subsequently replaced by Michael Luther when she chose not to seek re-election
As an individual defense for two board members whose children attend the school, the District asserts a free exercise claim. Since we agree with the Second Circuit in Brandon v. Bd. of Educ.,
Although the District tries to fashion itself as a secondary school because the school has a ninth grade class, at least seven of the remaining nine grades are classified by state law as elementary grades. See Okla.Stat. tit. 70, Sec. 1-106 (1981)
These facts are taken from plaintiffs' application for a contempt citation. Since defendants did not deny the allegations in their responsive pleading, we accept plaintiffs' allegations as true
In lieu of a contempt citation, the court ordered the District to post a $10,000 bond to secure future compliance with the injunction
Yet we recognize that the sectarian or denominational character of a practice may contribute to its divisive effect within a community. See infra at 1406-1407; Bender,
Dr. Thomas J. Berndt, a specialist on psychological development of children and adolescents, testified on behalf of plaintiffs that a child between the ages of 6 and 11 does not have the cognitive ability to "appreciate the difference between his point of view and that of somebody else. It's as if he simply assimilates and takes, unthinkingly, what other people have taught to him." Tr., vol. II, at 209. Children at this age are particularly influenced by authority figures, including teachers. Id. at 210. As children move into their adolescent years, ages 11-15, peer influence takes on increasing weight. Id. at 211. It is not until the age of 18 that the child fully develops the ability to make decisions independent of authority figures and peers. Id. at 212. (Defendants' expert, Dr. Paul Schmidt, a clinical psychologist, basically agreed with this view of child development. Tr., vol. V, at 868-73.) When Dr. Berndt was asked specifically whether a student in the fifth or sixth grade could make an informed choice about attending a religious meeting, he responded: "I think he could not because the decision would be based largely on whether the peers seem to support that activity and whether the teacher seems to support that activity." Id. at 217
We question whether anyone in the present case truly understood the distinction since one teacher, Becky Ernest, testified that she was the "sponsor" of the group. Tr., vol. III, at 588. Moreover, Dr. Berndt testified that even student sponsored religious activities occurring "during the school day and on school property would make it difficult for the young child to distinguish that from an endorsement by the school." Tr., vol. II, at 241
In bad weather, the gym was opened for the students. Those who had not eaten breakfast could also go to the cafeteria
The meetings were held in the band room. Students with instruments were forced to wait until the meeting adjourned to store their instruments. Other students met the group on the way to class when the bell rang. Occasionally, the meetings ran late and participants would arrive at class after the final bell
Chief Justice Burger, writing for the Court in Lynch, noted that a plaintiff may not cite community turmoil ensuing from a lawsuit as evidence of entanglement. Lynch,
Our conclusion is not affected by Congress's recent enactment of the Equal Access Act, Pub.L. 98-377, 98 Stat. 1302 (1984). The act would permit student-initiated, voluntary religious meetings during noninstructional time at those secondary schools which have created a limited forum. The constitutionality of this act has not been determined, nor is it before this court. The presence of one secondary grade does not make the Little Axe School a secondary school within the meaning of Okla.Stat. tit. 70, Sec. 1-106 (1981)
In Carey, the Court was concerned that the effect of the substantive deprivation was indistinguishable from that of the procedural deprivation. Here we need only distinguish the actions of the District which caused a deprivation of substantive rights from those actions initiated by third parties
Dignitary torts
"involve some confrontation with the plaintiff in person or some indirect affront to his personality--assault, battery, false imprisonment, malicious prosecution, intentional infliction of mental anguish, libel and slander, invasion of privacy, alienation of affections are all in this category. These torts have their statutory and constitutional analogues, so that essentially the same sort of interests may be protected under federal or state civil rights statutes or under the federal Constitution."
D. Dobbs, Remedies, Sec. 7.1 at 509 (1973) (footnote omitted), quoted in Herrera v. Valentine,
The substantive rights at issue in Herrera included liberty interests in freedom from punishment through bodily harm, false arrest, the right to medical assistance when in custody, freedom from unreasonable governmental intrusions into privacy, and the Fifth Amendment right to counsel. Herrera,
In Familias Unidas v. Briscoe,
Carey specifically recognized that voting rights cases have permitted presumed damages. Carey,
First Amendment rights are intimately linked to ensure full political, social, and religious expression and participation in our society. The Court has identified the individual's freedom of conscience as the central liberty that unifies these rights. See Wallace, --- U.S. at ---- & n. 35,
The majority states that the political, social, and religious interests inhering within the First Amendment are not to be distinguished for purposes of a damages analysis under Sec. 1983. Maj.Op. at 1412 n. 22. If Carey directs us to consider "the interests protected by a particular constitutional right,"