Chandler v. Siegleman

court’s decision to award costs the district trial defendants.

to all opinion, this we RE-

reasons stated court’s order granting

VERSE the district

summary judgment on the ADEA claim proceedings

and REMAND for further

light of AFFIRM opinion. We claim,

jury’s ADA Chapman’s verdict on the district court’s order on VACATE

costs and REMAND for reconsideration of

this issue. in part,

AFFIRMED REVERSED in part, and REMAND-

part, VACATED proceedings.

ED for further CHANDLER, individually

Michael son,

as next friend of his Jesse Chan

dler, al., Plaintiffs-Appellees, et Jr., JAMES, capacity

Fob in his official

as Governor of the State of Alabama

and President of State Board of

Education, al., Defendants-Appel et

lants. 97-6898,

Nos. 97-6953.

United States of Appeals, Court

Eleventh Circuit.

July General, Thomas F. Attorney Pryor,

Bill General, Parker, IV, Jere Attorney Asst. AL, A. Eric Montgomery, Beasley, L. AL, Johnston, Jay Alan Se- Birmingham, DC, Roth, kulow, Washington, Stuart J. I. AL,

Mobile, Defendants-Appellants. Legislature the Alabama enact- PC, containing following provi- ed a statute Harmon, Eley, & Mont- Webb Bart sion: III, AL, James, H. Bir- Forrest gomery, (b) school, public, Fob James. other

mingham, AL for On non-sectarian, property, non-pros- other Lloyd, Templeton, A. Schreiber Gerald voluntary student-initiated elytizing AL, Gray, Birmingham, Talladega for & benedictions, prayer, invocation and/or City of Education. Bd. permitted during compulsory shall be or United, Green, Americans Wash- Steven non-compulsory student school-related DC, ington, Plaintiffs-Appellees. for assemblies, sport- school-related student Stern, City, Marc D. New York Eliza- events, graduation school-related or Hubertz, Sumners, Birming- Pam beth J. ceremonies, and commencement other AL, ham, Congress, for American Jewish school-related student events. Amicus Curiae. 16-l-20.3(b) (1995). § Ala.Code Schroeder, Powell, Goldstein, Eric P. Chandler, In vice-princi- Michael Atlanta, GA, LLP, Murphy, Frazer & County pal system, the DeKalb school League People & Anti-Defamation Jesse, sys- and his son a student Foundation, Way American Amicus Curi- tem, brought challenging this action ae. validity application facial and the of this

statute in the DeKalb County schools.1 Defendants included the Governor of the Alabama, Superinten- State of the State Education, dent the members of the TJOFLAT, Judge, Before Circuit and Education, Super- State Board of and the HILL, GODBOLD and Senior Circuit and intendents members of the boards of Judges. City Talladega education of the and of HILL, Judge: Senior Circuit County, DeKalb Alabama.2 brought Plaintiffs this action challenging 12, 1997, March On the district court the facial constitutionality of Alabama’s granted summary partial judgment for the non-sectarian, permitting non-pros- statute Chandlers, holding facially the statute un- elytizing student-initiated invoca- constitutional. On October and during compulsory tions benedictions permanently enjoined district court De- or non-eompulsory school-related assem- County enforcing Kalb from the statute. blies, events, sporting graduation ceremo- On November the district court nies and other school-related events. findings issued of fact and conclusions Plaintiffs challenged also the statute as Supplemental Opinion law in its and Or- applied by County the DeKalb School day, That by separate der. same The district court held the statute Board., Order, Opinion Memorandum and the dis- face, granted plain- unconstitutional its trict court engaged held that DeKalb had partial summary tiffs judgment on their officially organized unconstitutional regarding applied, activities, claims the statute sponsored religious granted enjoined summary defendants from enforcing judgment to the Chandlers on the statute continuing to conduct the their claim that applied DeKalb had challenged practices. bring unconstitutionally. Defendants statute The district this appeal. court appointed a monitor to oversee the plaintiffs subsequently Also named as are Jane Doe and 2. The Chandlers entered into a partial daughter City decree her Deborah Doe. consent of Tal- ladega and the district court dismissed Talladega defendants from the case in 1996. scriptural readings, distribution Injunction. tional or Permanent enforcement materials, texts, the Perma- or announce appealed All defendants Opinion Injunction, Supplemental ments, nent of a devotional or and discussions Order, Opinion Memorandum and the nature, in school or at inspirational school- and Order. assemblies, events, to include related events, graduation ceremo sporting brief, the Governor his that, Apparently, nies.” DeKalb concedes district asserts of Alabama State precedent, may Supreme under Court facially holding the statute court erred or allow state em prescribe prayer Amend under First unconstitutional lead, ployees participate or otherwise contends that Governor ment. The curricu any type during endorse prohibition against First Amendment’s religion apply does not See v. lar or extracurricular events.4 Lee establishment by virtue of the Weisman, 577, 586, Fourteenth states 112 505 U.S. S.Ct. rejected district court Amendment. The 2649, (1992); County 120 L.Ed.2d 467 v. Con as do we. Cantwell argument, this ACLU, v. Allegheny necticut, 296, 303, 60 S.Ct. 310 U.S. (1989); v. 106 L.Ed.2d Doe S.Ct. (1940). also Everson v. See L.Ed. 1213 Dist., Indep. 70 F.3d 402 Duncanville Sch. of Educ., 330 U.S. Board Cir.1995). (1947). states Because the 91 L.Ed. Injunction, The Permanent Amendment, the by the First are bound “permitting” DeKalb from prohibits also evaluating not err court did district speech in or other devotional prayer vocal Accordingly, under it. statute Alabama’s district While the makes judgment its schools. we shall affirm appeal.3 prohibit students to the Governor’s clear that does not court as it while at or voluntarily praying from school (re- appellants The remainder of events, individually either at school-related DeKalb) not collectively as do ferred to other, long prayer so as the or with each that the court’s holding district contest the prayer all or private,5 prohibits purely unconstitutional, nor that facially statute is speech in situations which other devotional engaged in County schools the DeKalb as aloud purely private, not such or officially organized unconstitutional classroom, Therefore, system, address public over religious activities. sponsored program school-related the district court’s deter- or as we do review not events, issues. or at a sporting minations of these assemblies and Furthermore, ceremony. graduation portion appeal does DeKalb Neither applies to bar school prohibition by Injunction entered of the Permanent leading participating or personnel from prohibits it from court which the district vocal or other devo public or counseling, commanding, “aiding, abetting, reading, also or Bible speech tional procuring or ... school inducing, ordering, students6 requires school officially religious sanctioned organized or forbid officials doing so private other individuals including, but not activity in its schools from lohile in school or school-related events. to, Bible devo- limited vocal engage secondary-school in reli- any students other does not assert 3. The Governor activity during We decide time gious court. do not noninstructional by error district holding Equal the district court erred Ac- whether with the federal that is consistent facially rea- Act, unconstitutional for statute seq., 4071 ef or to 20 U.S.C. Section cess presented to us. son not during religious activity quietly engage in Injunc- Permanent times.” noninstructional therefore, not, any of these reach 4. We do at 4. tion issues. pri- non-government, all We shall refer to Injunction that noth- Permanent recites 5. The parties collectively as "students.” rights vate be read to "affect the in it should Injunction vacate the Permanent appeal portion this not. We does DeKalb Injunction. It contends that proceedings. and remand further Permanent constitutionally court district II. speech, pointing to forbid require very Court has made Supreme out that opinion The district holds court’s far “[p]rivate speech, clear requires prohibit that the it to Constitution orphan, is being a First Amendment religious speech in schools fully Speech under the Free protected if the Establishment Clause is violated private expression.” Clause as secular government permits religious speech- Advisory Bd. Square Review Capitol even if initiated students —in schools Pinette, events. DeKalb contends school-related (1995).7 “There is a wrong that this conclusion is for two rea government between crucial difference First, sons. students are not state actors religion, which the Es speech endorsing and, therefore, definition, their actions forbids, private tablishment Clause religion in viola cannot tend to “establish” endorsing religion, the Free Second, tion of Establishment Clause. pro Free Exercise Clauses Speech and Speech the Free and Free Exercise Claus Educ. Westside Com tect.” Board of require es of the First Amendment 226, munity Mergens, v. 496 U.S. Schools genuinely to tolerate student-initi State (1990) 2356, 250, 110 110 L.Ed.2d 191 S.Ct. in religious speech ated schools. Aguillard, v. (quoting Edwards U.S. 2573, 96 L.Ed.2d 510 S.Ct. Students as State Actors and the Estab- (1987)) in (emphasis original). lishment Clause agree Even the that “[t]he Chandlers prohibits The Establishment Clause prayer. Establishment Clause does not ban Congress governmental other —or (Plaintiffs’ prayer.” Reply It bans state body acting way in such a as to —from Brief) (emphasis original). They con- Everson, religion. at establish 330 U.S. tend, however, that student-initiated reli- 8, argues 504. DeKalb that be- S.Ct. gious public in the speech schools state cause students are not state actors —Con- and, therefore, prayer, may DeKalb gress governmental body or a reli- —their permit it. definition, cannot, gious speech tend to Injunction, Our review of the Permanent religion. establish a then, is limited to issue of whether the ordinarily It true religious may constitutionally enjoin district court speech private parties cannot establish permitting DeKalb from student-initiated if it religious speech religion, public its schools.8 For the even occurs in a insti reasons, tution, following may Mergens, we hold the court such as a school. Departments scriptures, say grace 7. The of Justice and Education bles or other before meals, principles pray issued a in the statement of sum- before tests to same provide mer of 1995 "to school officials with they may engage comparable extent non- guidance [concerning] the extent to which disruptive activities. Local school authori- religious expression permit- and activities are possess impose ties substantial discretion to public paragraph ted in schools.” The first pedagogical rules order other re- the statement advises: activities, they may strictions on but student prayer religious Student discussion: not structure or administer such rules to The Establishment clause of the First against religious activity discriminate or prohibit pri- purely Amendment does not speech. Educ., religious speech by vate students. Students Dep't Aug. News Release of U.S. engage right therefore have the same to at 3. group prayer religious individual or during appeals day they discussion 8. DeKalb also school as do district court's de- engage comparable appoint activity. in other cision to a monitor to enforce its example, which we below. students read their Bi- discuss policies, these but rather the re- On the other dooms at 110 S.Ct. 2356. hand, parties’ reli private speech religious, it is clear quirement the Establishment speech can violate gious i.e., invocations, benedictions, prayers. or parties as if the State uses Clause holding original This was the what the State accomplish surrogates case, Vitale, in prayer Engel school v. if example, a school may not do. For which the Court observed: constitutionally write and may not board as it to recite require among students The Petitioners contend other Vitale, not, v. assuredly may Engel most things requiring that the state laws 8 L.Ed.2d 601 370 U.S. Regents’ prayer use of the permitting (1962), may not avoid this the school board must be down a violation of struck function to by delegating this prohibition the Establishment Clause because that Lee, others. composed by prayer governmental per (invalidating policy school board of a governmental officials as gradua clergy give prayers mitting program to further beliefs. Treen, tion); F.2d 897 Karen B. v. reason, argue, petitioners For this (5th Cir.1981) (invalidating school board Regents’ prayer in its State’s use required which student or guidelines system school breaches the con- classrooms). Nor prayers teacher-led separation wall of between stitutional policy establish a may the State agree and State. We with that Church parties speak, “permits” private we think that the con- contention since other their then limits against laws re- prohibition stitutional speech. Ingebretsen Jackson devotional religion specting an establishment Dist., 274, 277 Pub. 88 F.3d Sch. country that in this must least mean Cir.1996) invocations, bene (authorizing govern- part it is no business of of prayers); and ACLU v. Black dictions compose prayers toment Educ., official Bd. 84 F.3d Reg’l Horse Pike of people to recite group the American (3d Cir.1996) (school policy 1471 board of program carried religious as a prayer to have permitted students to vote by government. on Dist., graduation); Harris v. Joint Sch. (9th Cir.1994), 447 vacated as F.3d 425, (emphasis moot, held, therefore, that The Court supplied). (1995) (school policy permit country, in it state or “government this Jager v. prayer); ted student to lead federal, by power prescribe to is without Dist., County 862 F.2d 824 Douglas Sch. prayer ivhich any particular laiv form of Cir.1989) (11th (authorizing student-led in prayer is to be used as official only invocations at school vocations carrying any program governmental- events); sporting Hall v. Board Sch. (em- activity.” Id. ly sponsored religious (5th Cir.1981) Comm’rs, F.2d 999 all it phasis supplied). This is held. (school devotionals, and policy permitted devotionals); only v. Chandler Collins Engel lower courts have extended Some Dist., Sch. 644 F.2d 760-61 prohibit any to require government to Unified Cir.1981) invocations, (authorizing expression belief public benedictions, only). prayers to holding for this is said Support schools. that in the Court’s observation be located reli When the State commands neutrality pray- of the the denominational gious speech, steps it over the Constitution limitations of er not “free it from the did religion. In each of these to establish Clause.” Id. Establishment cases, to create an it is the State’s decision interpreted this S.Ct. 1261. These courts medium which vio exclusively religious religious speech could be to mean no Clause; not the lates the Establishment public tolerated in the schools because religious speech. It is not private parties’ it. forbade religious speech which Establishment Clause “permitting” said, private parties as students —if that not what the Court howev- This is —such i.e., neutrality of the speech genuinely privately-initiated, er. The denominational prayer could not “free from Regent’s by not commanded a school board or state Clause” limitations Establishment contrary, argues, law. DeKalb On prayer because the was “commanded” positively requires that First Amendment really matter the State. It did not what religious speech it tolerate students’ to the said; prayer no commanded permits same extent that it students’ secu- scrutiny can survive under the the State lar speech. Establishment Clause. Chandlers, hand, on the other con- specifically The Court cautioned permits tend that when the State students than “nothing wrong” could be more to speak religiously in that are to situations interpret Engel require hostility to “a to- purely private,10 lends its State religion prayer.” ward or toward Id. at imprimatur speech, thereby endors- (emphasis supplied). 82 S.Ct. 1261 advancing religion in violation of contrary, history On the of man is “[t]he “obligation schools to history religion.” from inseparable provide a environment.” religiously neutral Amendment, put The First “which tried to They argue public religious also that all governmental religion an end to control of unconstitutionally schools is co- destroy and of was not written to “peer ercive of some students Rather, either.” Id. at pressure.” Consequently, schools must protects religious expression freedom of school, public religious speech forbid all by forbidding government requiring including genuinely student-initiated reli- only “speak religious thoughts us to gious speech. government speak want[s][us] Speech Student and the Free Exercise and pray government to the God that Speech Free Clauses pray to.” Id. The Court

want[s][us] This, then, question is the DeKalb asks holding Engel summarized its in the way: following us to answer. Do school officials have “the (and ability duty) impose content re- It sacrilegious is neither nor antireli- gious say govern- purportedly ‘private’ speakers strictions on separate each events,” ment in country stay should out at school in order to achieve neu- writing sanctioning the business trality respect religion to as the of prayers (Chandlers’ and that purely leave Chandlers contend Brief official religious function to people them- 27); or do the Free Exercise and Free and to people selves those the choose to Speech require Clauses that school offi- look for religious guidance. permit cials religious speech student at the time, Thus, (emphasis supplied). Engel place Id. same and in the same merely made clear that the Establishment speech, manner as secular as DeKalb con- prohibits government Clause theory, tends? Under the Chandlers’ stu- commanding prayer prescribing its religious speech dent is attributable to the form.9 thereby violating State the constitutional Students, requirement neutrality. of

But DeKalb does not claim otherwise. therefore, permitted speak cannot be only nothing DeKalb contends in the Amendment, freely religion topic; school if First nor in is Su- it, preme positive duty has a interpretations Court’s re- State to censor student quires prohibit religious speech it to if speech religious. it is opt-out provision Injunction, example, 9. The of the school board's The Permanent policy constitutionally insignificant permits "quietly engage in the students to in reli- times, "governmentally composed gious prayers activity during context of noninstructional religious long unduly services” schools. 370 U.S. at so as it does not call attention S.Ct. 1261. thereto.” disapproval religion. of stu- unconstitutional suppression The disagree. We religious speech is neither If dent-initiated endorsement is unconstitutional because achieve, to, nor does it constitu- necessary message it “sends nonadherents neutrality religion. towards tional outsiders,” they disapproval are is uncon- reason, per- does not the Constitution opposite stitutional because it “sends the suppression. mit its message.” Lynch, 465 U.S. (O’Connor, J., concurring). S.Ct. 1355 be neu- government

It true that must is prac- crucial that a government But it is ‘What is is respect religion. tral with warned, true, Goldberg communicating tice not have the effect equally as Justice that an: message government endorsement or concept disapproval religion.” to the Id. at

untutored devotion ap- invocation or neutrality can lead to (emphasis supplied). S.Ct. 1355 “Cleans- not sim- proval partake of results which ing” public religious of all ex- our schools of that noninterference and nonin- ply pression, inevitably results religious with the which the volvement “establishment” of disbelief—atheism—as commands, but of a brood- Constitution religion. the State’s Since the Constitu- secu- pervasive dedication to the requires neutrality, tion it cannot be the active, passive, lar and a or even hostili- government may prefer case that disbelief are not ty religious. Such results religion.11 over Constitution, compelled by Permitting speak religiously students to but, me, prohibited by it. seems to disap- nor signifies approval neither state Township Abington v. School Dist. of proval speech. speech The is not 203, 306, 83 Schempp, 374 U.S. the State’s—either attribution (1963) con- (Goldberg, 10 L.Ed.2d 844 J. signifies adoption. permission no curring). acknowledges than its more that the State discriminatory of stu- suppression duty religious to tolerate ex- constitutional religious speech dent-initiated demon- Only way in this neutral- pression. is true neutrality hostility toward strates not ity achieved. religion because the: genuinely student-initi Because ideas, symbols, and exclusion of en religious speech private ated marginalizes religion.... voices Silence fully protected by dorsing religion, subject conveys powerful mes- about the Free Exercise and the Free public sphere open both sage. When symbols representing nonreli- ideas and Clauses of the Constitution. See Speech culture, viewpoints, ideological 2356; gious Mergens, 496 U.S. at commitment, all those whose Dist., to exclude Indep. Sch. Jones Clear Creek profoundly dis- “religious” basis is would Cir.1992). “Students do not F.2d culture. tort ... rights at the shed their constitutional McConnell, Religious Michael W. Freedom Tinker v. Des Moines gate.” schoolhouse Crossroads, 115, Dist., L.Rev. 189 at a 59 U. Chi. Indep. Community Sch. 393 U.S. (Winter 1992). 506, 733, 503, 21 731 89 S.Ct. L.Ed.2d (1969). by students does Religious speech religious speech all prohibition

The of therefore, forbidden “state action” the implies, an not become public our schools heritage. The First re- elevate atheism over that 11. We believe that the First Amendment's requires only that the State toler- quirement government "tolerate” diverse Amendment both, views, establishing totally neither. Ameri- political including that are ate while those cans, prefer or the constitutionally guaranteed are free to one antithetical to our express preference wherever republican government, applies to other and to form of means, permitted speak. of government they This require that "tolerate” atheistic course, express may requiring that a student choose to also that we eschew views without religious as his atheistic views as well religion. Tolerance of disbelief does not re- his deny religious heritage, quire that we our nor ones. 1262 indifference’ we have require the ‘callous walk students

moment by the Establish was never intended door. said schoolhouse Clause,” bring “would us into ment Furthermore, Court has Supreme traditions as embod ‘war with our national religious permitting clear made guaranty of ied in the First Amendment’s institu- public our symbols speech ” religion.’ (quot Id. the free exercise of automatically constitute an tions does not Education, 333 v. Board McCollum of reli- endorsement unconstitutional State 461, 203, 211-12, L.Ed. 68 S.Ct. 92 U.S. fact, an unbroken In gion. “[t]here (1948)). 649 by all acknowledgment history of official role government branches three all “evidence examples The cited above life from at least religion in American all of all faiths and accommodation [our] 668, Donnelly, Lynch v. 1789.” religious expression, and hostili- forms (1984). 1355, 674, 79 104 S.Ct. Through this accommo- ty toward none. religious heritage are to our References ... action has ‘fol- governmental dation statutorily national prescribed found in the of our traditions’ and the best lowed] currency, “In on our God We motto of our nature ‘respect[ed] 186, Trust,” § and in lan- 36 U.S.C. ” 677-78, 104 people.’ Lynch, U.S. God,” which is “one nation under guage Clauson, (quoting Zorach S.Ct. Allegiance to our Pledge part of 314, 679, 96 L.Ed. S.Ct. U.S. children ev- by public school flag—recited (1952)). Genuinely student initiated opens with a ery day. Congress religious speech can also be accommodat- itself, Court, and, indeed, Supreme in an resulting ed without unconstitution- in a chamber decorat- argument hears oral religion. al State endorsement of depiction of Moses and the Ten ed with Furthermore, Thanks- permitting We celebrate even if Commandments. holidays, as national giving and Christmas religious speech advances student-initiated has directed the President Congress sense, this does not mean religion some Day Prayer proclaim a National each violates the Establishment year [day] people “on may Even action incidental Clause. State turn to God in United States ly religion offending without advance churches, groups, and meditation at Vincent, Widmar v. Constitution. § 169h. as individuals.” 36 U.S.C. 70 L.Ed.2d U.S. (1981). recog Supreme Court has require The Constitution does precedents contem plainly nized that “our gnd complete separation of church state plate that on occasion some advancement religious expression may not be religion governmental will result from In tolerated our -institutions.12 Lynch, 465 action.” U.S. fact, affirmatively “it accommo mandates every law that' confers an ‘in 1355. “Not dation, tolerance, all reli merely ‘remote,’ direct,’ ‘incidental’ benefit gions, hostility any.” and forbids toward is, alone, upon [religion] for that reason Lynch, 465 104 S.Ct. 1355 constitutionally (quoting invalid.” Id. (emphasis supplied). Supreme Court Religious Committee Public Educ. & “[a]nything has made clear that less would fact, (Rehn- probably 86 L.Ed.2d 29 In the Constitution does not J., event, quist, dissenting). require phrase the "wall'’ a "wall'' at all. The comes acknowledged by by concept has been the Court a letter written Jefferson who was itself, Rehnquist character- present Amendment with what Justice neither when the First candor,” merely "embarrassing passed, language. ized as as was nor consulted about its barrier,” "blurred, indistinct, Danbury Baptist and variable Associ- In a short note to wholly years accurate” and can ation written fourteen after the Bill of which "is passing "dimly perceived.” at 105 S.Ct. Rights passed, he made a refer- be Id. Kurtzman, (quoting Lemon v. 403 U.S. to idea that the First Amendment 2479 ence 745 separation 29 L.Ed.2d a wall of between church "build[s] (1971)). Jaffree, and State.” See Wallace v. for, In Liberty Nyquist, acting, express respect 413 U.S. so we (1973)). of, 37 L.Ed.2d 948 Stu- not endorsement S.Ct. fundamental therefore, religious speech, dent-initiated values of others. We act without ex- incidentally religion, even if it advances pressing position on the theological does not violate the Establishment Clause merit of those values religious or of be- speech it reli- private endorsing in general, perceives lief and no one us protects. Amendment gion which First position. to have taken such a Creek, at 965. See Clear 977 F.2d Lee, (Sout- 505 U.S. at S.Ct. er, concurring). Respect J. Finally, religious rights the fact that student for the beliefs, speech may express fall on deaf ears does not of others to their both Lee, unconstitutionally political make it coercive. and religious, price is the the Con- Lee, at liberty.14 505 U.S. S.Ct. 2649. stitution extracts for our own Supreme point price Court was careful to This is a we freely pay. It is not out that: Only speech coerced.15 when the is com- by manded State does unconstitu- every

We do not hold that state action tionally coerce the listener.16 religion is invalid if or a implicating one People few citizens find it offensive. Ultimately, in the issue this case is not may take offense at all manner of reli- may prescribe whether school officials gious nonreligious messages, as well surrogates or' enlist to that end. every but offense alone does not in case They may not. Nor is the issue whether that show violation. We know too may prohibit school officials religious sometimes to endure social isolation or schools, in speech censor content anger may price even be the of con- speech. They may that not. The real nonconformity. science or time, place, issue is what sort of and man- may ner limits imposed upon genuinely be 505 U.S. at 2649.13 Those religious speech student-initiated espouse who do not a speaker’s religious may schools? When pray? students listen, beliefs are free not to and to ex- may they pray? Where cir- Under what press disagreement by participat- their may they pray? cumstances any way. religious Accommodation of beliefs we In answering questions, these we must is, however, part every- do not share fulfill the requirement constitutional day country: permitting freely life in this express students their course, acknowledged 13. Of case we do not have state 15. Justice Souter this in Lee: religious speech action. Private has even less graduation day “If the State had chosen its potential for coercion. criteria, speakers according wholly secular (not actor) speakers and if one of those a state 14. Justice Scalia observed in Lee that "We individually religious had chosen to deliver a vulgar age. surely indeed in a live But 'our message, would have been harder to attrib- conventions,' social have not coarsened to the religion ute an endorsement of to the State. point anyone that who does not stand on his But that is not our case.” 505 U.S. at 630 n. reasonably chair and shout obscenities can be 8, 112 S.Ct. 2649. everything deemed to have assented to said add, moreover, presence.... may his maintaining respect I 16. The "indirect coercion” identified in Lee religious for the observ- plurality opinion was exerted over the ances of others is a fundamental civic virtue government (including audience the State's command there schools) can and should graduation. cultivate —so religious 505 U.S. displaying even if it 592-93, were the case that the Kennedy's 112 S.Ct. 2649. Justice respect might taking be mistaken for government concern that “in the hands of deny in the I would that the might begin expression what as a tolerant avoiding dissenter's interest in appearance even the false policy end views to indoc- participation constitutionally 591-92, coerce,” trinate and id. at trumps government's fostering interest in (emphasis supplied), apply does not religion respect generally.” religious speech. the case of student-initiated 637-38, (Scalia, dissenting). 112 S.Ct. 2649 J. at Mergens, 496 U.S. allowing the ma- also without beliefs religious be 2356. school'—to chinery government —the requires prayer. This to command used hand, genuinely even the other On between the the tension that we resolve may con religious speech student-initiated to be free from pray right and the right to participates if action the State stitute state prayer. This is government-mandated speech. See Duncan supervises the in or easy simply to It would be easy task. ville, Religious 406-07.18 70 F.3d at institutions, prayer from our banish teachers, example, for speech school only constitutionally be not but this would because “a teach especially troublesome is incorrect, fundamentally unfair to also can be taken as [religious] speech er’s society. our deliberately representative of directly and Aronov, 926 F.2d Bishop v. the school.” III. (11th Cir.1991). par Teacher then, How, accom does school “im prayer ticipation student-initiated com without religious expression modate religion entangles the State properly that the an argues it? DeKalb manding endorse signals an unconstitutional “permitted.” to be simple is is swer —it Duncanville, at 70 F.3d religion.” ment of Not required. Not commanded. Not Act, Equal Access upholding If Simply, permitted. suggested. even must afford provides that schools students, private parties, or other wish access to school religious groups the same while in school or at speak religiously enjoy, the Su groups as secular facilities events, may they exercise school-related the act’s preme relied on Court right First Amendment to do so. their partic teacher express prohibition on problems which “avoids the always ipation must be that principle The first of teachers as role ‘students’ emulation religious student-initiated genuinely ” Mergens, A models.’ 496 U.S. permitted. must student’s speech Edwards, (quoting S.Ct. 2356 pray decision to or otherwise individual 2573). Therefore, student com speak religiously is not the State’s Creek, over speech must be without 977 F.2d at 965.17 mand. Clear subject only to sight, supervision,19 without fully protected. Id. See Such encourage- leadership, upheld policy vent active school Circuit also 17. The Ninth prayers. top speak promotion permitted four students to on ment or ap may any topic choosing questions of their without state here are how teachers Dist., proval prayers Sch. 147 F.3d respond in Doe v. Madison and to to student-initiated 1998), (9th Cir. but the court en banc may "supervise” what extent the school ordered the district court to dismiss the com prayers. plaint standing lack of and mootness. No. 70 F.3d at 409. 19, 1999). (9th May 97-35642 Cir. "supervision?” Judge constitutes As 19.What subsequent many courts have cited 18. While Jones wrote in Duncanville: proposition Duncanville for the that student level, goes everything At a broad sporting speech at school-related initiated constitutional, during practice competition, including Circuit is un the Fifth events that, basketball student-initiated locker-room or may specifically held volun- "[s]tudents subject "su- provided court to the coaches' tarily pray together, participation supervi- supervision on this pervision.” outlaw not done school To (emphasis supplied). at 405 the otherwise con- sion.” 70 F.3d level would be to outlaw Jones, separate Judge her concurrence and prayers.... It must stitutional student-led dissent, be, then, pointed pertains only out that: that the supervision and is thus redundant of prevent active decision ... does not students This pro- rights that the school exercising the cautions their constitutional mote, encourage prayers. or lead speech, and free exercise of free association appropriate F.3d at 410. by praying times and in an therefore, mean, Supervision cannot mere appropriate during prac- manner athletic Further, presence. Support this view is found in games. we must abide tices or pre- Supreme Court found Mergens in which the Supreme decisions ... Court’s

1265 time, ery man- as a place, converting the same reasonable state vehicle for speech Abington, as all other student his audience. See 374 at ner restrictions U.S. 228, 83 S.Ct. 1560. The Constitution re- in school. quires that permit religious schools ex- religious speech Because pression, religious proselytizing. “The may not protected speech, government principle government may accommo- Chapel v. censor its content. Lamb’s Cen date the free religion exercise of does not Dist., ter Free 508 Moriches Union Sch. supersede the fundamental limitations im- 384, 394, 2141, 113 S.Ct. 124 L.Ed.2d U.S. Lee, posed by the Establishment Clause.” (1993) (quoting 352 v. NAACP Cornelius 112 Prosely- 505 U.S. S.Ct. 2649. Fund, Inc., Legal & Educ. 473 Defense and, tizing inherently coercive 788, 806, U.S. 105 S.Ct. 87 L.Ed.2d prohibits Constitution it from the gov- (1985)) (the government violates the pulpit. ernment’s Id. First Amendment when it denies access to speaker solely suppress point IV. espouses). Suppression view he of reli Injunction enjoins The Permanent gious speech viewpoint constitutes discrim “aiding, DeKalb from abetting, command ination, egregious the most form of con ing, counseling, inducing, ordering, pro or censorship. Rosenberger tent-based curing” organized school officially or sanc of Va., Rector & Visitors Univ. religious activity. tioned DeKalb does not 2510, 132 115 S.Ct. L.Ed.2d appeal prohibition. The record this (1995). not, therefore, may Government reveals, however, case there were religion censor from the content of stu sincere, many but unconstitutional efforts protected speech dents’ at school. Corne personnel just school to do what the (“Con lius, U.S. 105 S.Ct. 3439 endorse, prohibits encour —to nonpublic trol over to a forum can access age, participate in student ac subject speaker be based on matter and tivity. reason, appointment For this identity long so as distinctions drawn a monitor by the district court was not an in light purpose reasonable abuse of discretion. See Local 28 viewpoint served the forum and are EEOC, Sheet Metal Workers’ Int’l v. neutral.”) (emphasis supplied); Perry 421, 481-82, U.S. Perry Educ. Ass’n v. Local Educators’ (1986). L.Ed.2d 344 The monitor’s task is Ass’n, U.S. vigilant guarding against repe to be (1983) (A “state reserve activity by tition of this unconstitutional [nonpublic] forum pur for its intended the schools. poses long regulation ... as the Injunction The Permanent also forbids speech is reasonable and not an effort to “permitting” DeKalb from students suppress expression merely speak religiously. This it cannot constitu- view.”) oppose speaker’s officials tionally long personnel do. So as school actively supervise participate do not A right speak student’s reli speech, student-initiated DeKalb cannot not, however, giously is without limit. The constitutionally prohibit students may impose school the same reasonable speaking religiously and the Permanent time, place, restrictions on the and manner Injunction require cannot it to. religious speech as it does on secular Furthermore, speech. student a student’s We do not undertake to re-write the right express personal religious Injunction. his be Permanent The district court using position liefs does not extend to the machin- is in the best to do that. We note that, infirmity provision Judge supervision no constitutional with the to amount to Jones endorsement, permits employees of the EAA which school unconstitutional it must cross present purposes to be for custodial at reli- endorsement, encourage- the line into active gious meetings property. held on school participation. ment or agree 110 S.Ct. 2356. We 1266 in- particular of may to address violation Injunction Permanent the only that in- on the nature junction depend student-initiated genuinely prohibit neither of sanctions junction; types not all restrictions on apply nor speech, Finally, I ex- injunctions. for all available that time, of and manner place, the equitable and constitu- why, based on plain on placed students’ those exceed considerations, injunction should an tional speech.20 secular party of relief for a as a form be entered the dis- of Judgment the Accordingly, of con- type when one to a lawsuit the Gover- as to is AFFIRMED trict court potentially tempt sanction —coercive—is defen- remaining As to the appeal. nor’s ap- Part II then violations. available for Injunction the Permanent appeals, dants’ this case. the facts of this rule plies to REMAND- case is and the is VACATED inconsis- not proceedings further ED for I. opinion. this

tent with through con- enforced Injunctions are 401(3) § 18 U.S.C. See tempt sanctions. TJOFLAT, specially Judge, Circuit (1994). judge’s atten- it comes to When concurring: may not be in com- that an individual tion majori- the wholeheartedly with agree I entered, injunction he has with an pliance separate- I write analysis in this case. ty’s hearing cause” at which holds a he “show funda- emphasize a more ly, noncomplying individual allegedly the court. I error made the district mental why disobeying he is to show cause asked injunc- many of provisions that believe is in fact injunction. If the individual court by the district were tion entered injunction, and he is unable disobeying the principles of in violation of basic entered doing acceptable an excuse for provide and constitutional equity jurisprudence contempt so, subject then he is equity that will namely, principle law— I part, In this dis- powers court.2 adequate there is not intervene where contempt avail- types of cuss sanctions prin- remedy at law and the constitutional court, and then discuss to a how able powers. prin- These ciple separation court’s decision whether impact should explained will be ciples, for reasons that in in- injunctive relief the first grant hereafter, that lead to conclusion stance. enter an that court should con- through coercive cannot be enforced A. injunctive

tempt sanctions. Some one three Contempt sanctions take be so en- at issue here cannot provisions or coer punitive, compensatory, forms: forced, be vacated.1 therefore must punish the con Punitive cive. sanctions concurrence, conduct, I of this after imposed In and are for his temnor injunctions are enforced recognizing vindicating the authori purpose for the sanctions, I Gompers discuss the v. Buck’s through contempt ty of the court. See Co., 418, 441, 31 contempt generally Range & types of sanctions Stove (1911).3 explain I L.Ed. judge. to a then available if an individual served contempt sanctions available types necessary appropriate I feel it is on announce- 20. This includes restrictions —to —indeed sponte in this concurrence. address them sua permitted in schools' commence- ments of reli- programs, and distribution ment procedure is laid out in more detail 2. This gious literature. n. 8 Wyatt Rogers, 92 F.3d v. Cir.1996). properly I discuss herein were 1.The issues majority opinion upon by relied Gompers have principles set forth 3. The simple they raised reason that were not Un recently reaffirmed in International been ion, Bag appellants either the district court or Workers America United Mine 826-29, well, are, however, sufficiently appeal. They 2556-58, (1994). 129 L.Ed.2d system jurisprudence important to our 258, 303-04, subpoena pro duces tecum but refuses 91 L.Ed. 884 (1947). documents, requested duce and the The contempt sanction the well- subsequently holds him contempt Clinton, court known case of Jones v. imposes (payable a flat fine of F.Supp.2d (E.D.Ark.1999), $50 falls into court) for contempt, contempt case, his this category. court, properly punitive. is as having sanction classified found that the gave defendant false SEC, See Cal. v. deposition Co. 330 U.S. testimony, held the defendant in Penfield 592-93, 585, contempt. 91 L.Ed. punishment The for the con (1947). situation, op In such a tempt payment a plaintiff to relief, posing party provided expenses fees) no because (including attorney’s caused gets neither the requested testimony. documents the false id. at See 1134-35. proceeds sanctions, nor from the fine. Further Compensatory punitive unlike more, way sanctions, the eontemnor has no to purge provide a direct benefit to the (in words, contempt other sanctions, avoid the plaintiff. Like howev fine); er, if produced requested he docu the eontemnor is unable to purge his five ments minutes after the court’s deci contempt: Were Clinton now President to sion, required pay he would still be to deposition amend his $50. answers to make sanction in such a accurate, The ease is intended to them completely contempt punish contempt, the eontemnor for his sanctions would nevertheless remain in thereby vindicating authority the court’s force. deterring and thus the eontemnor and The third form of contempt sanction is violating subsequent judicial others from coercive. Coercive sanctions are also civil (issued by orders other same nature, in and are to intended coerce the court). Punitive are criminal in sanctions doing eontemnor into act an that he is many nature and therefore of the constitu do, already required to to per refuses protections tional in available criminal form. Gompers, 441-42, See 221 U.S. at proceedings including the presumption of — Thus, 31 S.Ct. at 498. previous to use the innocence, the privilege against self-in ly example cited Penfield, if the dis crimination, counsel, right to and the trict court had ordered recipient right jury to a trial in cases—must serious subpoena tecum pay duces to a fine of $50 provided

be to the eontemnor be alleged day every day per recipient failed such sanctions can imposed. fore be See produce documents, to the requested Young v. United States ex rel. Vuitton et a sanction would be coercive.5 Coercive S.A., 787, 798-99, Fils 481 U.S. benefit the by pressur sanctions plaintiff (1987).4 95 L.Ed.2d 740 ing the performing defendant into an ac The second form of contempt sanction plaintiff tion that the per desires to have compensatory. Compensatory sanctions formed. See id. at 31 S.Ct. at 498. civil in nature compensate They give also opportu eontemnor the plaintiff for caused damage nity to purge contempt: his punish The contempt. contemnor’s See United States long ment continues as the contem- Am., v. United Mine Workers 330 U.S. nor refuses to comply with the relevant 798-99, 4. Young: As stated in Young, 481 U.S. at 107 S.Ct. at 2133 (citations omitted). contempt proceed- [Defendants in criminal innocent, ings guilty beyond presumed proved must be doubt, presumably paid reasonable and ac- fine would right testify against court, corded the to to refuse although theory paid it could be themselves; charges, must be advised of opposing party. Regardless of who re- have them, opportunity respond a reasonable money, ceived the purpose clear permitted and be the assistance of pressure of the fine would be to the contem- witnesses; right counsel and the to call compliance, nor into the fine would be classi- given public must be trial before an unbi- fied as coercive. 'judge; ased jury must be afforded a contempts. trial for serious being of’ the sanction character tion of the coercive Hence, regard order. court whether to determine imposed order a contemnor often said it is or coercive. compensatory, punitive, own his prison key his carries Feiock, States, Hicks v. See, v. United e.g., Blalock pocket. (1988). Cir.1988) (11th 1546, 1559 F.2d (quoting J., concurring) specially (Tjoflat, B. Cir. Nevitt, 117 F. In re com- 1902)). punitive, types sanctions— can be used or coercive—that pensatory, of sanc- type each separating The lines on the depend an to enforce always clear. are not the others tion from enjoined. being the conduct character im- a court situation Consider com- injunction that first Consider party, sanction contempt poses $150 a act. specific of performance mands the way in no party but to the adverse payable the instance, a case in which imagine by that suffered to the harm correlated that is paper a mill operates defendant pay- is the fact that sanction The party. plaintiffs the onto discharging pollutants (and the party adverse to the able alleg- brings a lawsuit plaintiff The land. compen- court) appear the sanction makes injunction nuisance, and seeks an a the amount the fact that satory, but the to shut down ordering the defendant harm suffered to the is unrelated sanction in- the succeeds and plaintiff The mill. to the conclu- leads party by the adverse defendant, how- The junction granted. is punitive. in fact is the sanction sion that mill. ever, paper the operate continues to On, 693 Chuen Inc. v. Thyssen, S/S Cf. F.2d court, conducting a show cause after The Cir.1982). Fur- 1173-74 in con- the finding defendant hearing and serves thermore, contempt sanction every the of sanc- types use tempt, could authority the to vindicate degree to some sanc- punitive previously tion discussed: (and puni- is somewhat thus of the court $10,000), (such a flat fine tion as tive) the contemnor to dissuade (such a fine of sanction as compensatory (and is thus his misbehavior repeating the harm $5,000, roughly equal to which is coercive). Gompers, See somewhat caused, coer- plaintiff), payable to might at 498. One (such per as a fine of $100 cive sanction meaningless fact renders argue that this down). mill is day paper until the shut types of con- among the the distinctions instance, all Next, injunction forbids an that tempt sanctions—for consider punitive, act. For specific are somewhat contempt sanctions performance distinguish punitive an em- no in which imagine sense a case makes other two corporate employ- contempt sanctions from her alleges that ployee (who This, howev- is contempt er, sanctions. of its CEO types the actions shareholder), has, be- er, arguing equivalent majority is the also hair, occasions, inap- no touched her have makes cause all men facial number employee claims bearded and The areas. distinguish propriate between sense to cases, sexual constitutes men. both this behavior non-bearded harassment, U.S.C. in violation degree, and fact is one of question 2000e-2(a)(l) (1994).6 a lawsuit She margins § files at the difficult cases there will be injunc- seeking employer, her conceptual categories against deprive the does not cease Instead, ordering employer to tion difficult significance. of their succeeds, in- She harassment.7 a detailed “examina- merely require cases (1993) (discussing employee's would 6. The claim claims). work environment” "abusive "abusive work environ- created an CEO had ment,” quo quid pro opposed claim of as to a actually amount Injunctions of sort generally Harris sexual harassment. See “obey the injunctions to nothing more than Inc., Systems, Forklift which, law,” from those different reasons Nevertheless, junction granted. the with his hands clearly visible so that the inappropriate touching. CEO continues the court can see that the fingers CEO’s court, conducting after a show cause not crossed. The court is unpersuad- still hearing finding ed, employer in con- allowing continues the fines to (such tempt, can assess sanctions accrue. This exercise would presumably $10,000, as a flat fine payable continue until court, such time as the court) (such compensatory sanctions reason, whatever decided that the CEO equal caused, a fine to the harm payable to had then, learned his lesson.9 Even the employee). Coercive howev- contempt would have purged, been er, available, are not because the act to be because the harassment would already prevented by injunction already has have fully been accomplished. point words, occurred—-in other way there no simply injunction that when an forbids purge contempt.8 See Gompers, performance act, of an coercive sanc- (“[I]f U.S. at 31 S.Ct. at 498 tions are not available to enforce in- defendant does that which he junction. has been do, not to commanded the disobedience is Note that it is not the affirmative or a thing accomplished. [Coercive sanc- negative phrasing that is

tions] cannot undo or remedy has what critical. An injunction commanding the ”). been done.... (for performance of specific instance, act clearer, To make point try mill”) the imag- “shut down paper could, the in many ine a attempting cases, court just enter easily coercive as be phrased as an sanctions in the injunction situation outlined above. (for prohibiting a ongoing harm The enjoined instance, court has the employer mill”). “do not operate the paper to harass the employee. employer Likewise, The injunction an forbidding per the so, and, (for nevertheless does after a show specific instance, formance of a act “do hearing, cause is held sexually The not contempt. could, the employee”) harass court employer the per day cases, fines until in many $100 phrased injunction be anas well, ... until what? Presumably, until commanding performance the of an ongo (for the court persuaded that the harassing instance, duty “treat male and CEO repeat will not his employees misbehavior. female equally”). Interna Cf. Thus, fines, days Union, after three of the CEO tional United Mine Workers of judge promises contacts the that he Bagwell, Am. v.

will again sexually (1994) never harass the em- S.Ct. 129 L.Ed.2d 642 ployee. The court thinks the (suggesting injunction CEO was an directed a shifting eyes his a bit much when strike,” he made union stating, “Do not is essential promise, however, the and therefore ly allows the stating, same as one “Continue the fines to continue Rather, After accumulating. working”). it underlying is the fines, a week of the CEO makes the same nature of injunction specifically, the — promise, but this time on his knees and whether it commanding an act that the here, stance, outlined repeatedly have held in- been if the harassment consisted in part of See, Labs., Inc., e.g., Payne valid. placement v. Travenol the pornographic pictures (5th Cir.1978) office, (holding F.2d 897-98 throughout employee could injunctions "obey the law” injunction violate the seek ordering an pictures that the requirements 65(d) of Fed.R.Civ.P. that an injunction granted, be removed. If the injunction specific” “be in rea- through "describe could be enforced coercive sanc- sonable restrained”). sought detail ... the act or acts to be per day tions—for a $200 fine of (In Prichard, City pictures Bonner v. until the were removed. (en Cir.1981) F.2d banc), adopted binding court prece- as contrast, In where the contemnor is en- dent all decisions of the former Fifth Circuit act, joined perform specific promises 1, 1981.) prior handed down to October compliance necessary future are neither nor relevant—the contemnor can avoid sanctions might (and 8. The depending situation be different by) performing only the commanded on the nature of the harassment. For in- act. nothing to com- addition, would do the fine act that the an proscribing requires or law harm for the caused plaintiff pensate the whether determines law forbids—'that only pro- benefit by the harassment. sanc- coercive through enforced can be fine would plaintiff vided tions. imposition Because of abe deterrent: commands sum, injunction if an In less fine, might be employer (such shut- as specific act performance in the fu- plaintiff harass the inclined to mill), all three paper then ting down however, deterrent, equally ture. This are available types of sanctions an action through plaintiff available to injunction forbids If, an court. If, seeking an instead damages: for (such sexually an act performance a show calling for and then only punitive then employee), an harassing employer was hearing at which cause are available sanctions compensatory plaintiff punitive assessed to the court. after damages action brought simply had occurred, employer the harassment C. (Furthermore, be deterred. equally would avail- contempt sanctions types of compensation receive would plaintiff injunction deter- of an for able violation caused, injunc- in the unlike the harm for injunctive the effectiveness mine scenario.) sum, every benefit tion Specifi- plaintiff. being given to relief injunction en- gets from an plaintiff section, injunc- in this I cally, as discuss would be by punitive sanctions forced through enforceable that are tions damages. action available equally pro- sanctions compensatory merely imitate sanctions Compensatory best— is—at plaintiff to a vide relief provided relief that would the relief available duplicative instance, returning damages action. Only injunctions damages.10 an action example, assume harassment to the sexual sanctions through coercive enforceable compensa- impose to a the chose that court unique to is a of relief that provide form court, employer. on the tory sanction only type the They are therefore equity. parties, from both hearing argument after enter, on that courts should injunctions damage plain- to the that the determined injunctions rule that the basis roughly harassment tiff from the plaintiff the where granted should be employer pay the to $5,000, ordered remedy at law. See adequate has an The fine plaintiff. to the does that amount Co., 172 Light Power & v. Florida Weaver (it again is prior harassment Cir.1999). not affect the 771, 773 F.3d deal”), plain- the compensates a “done essentially no provide Punitive sanctions In suffered. this harm she has tiff for the above, discussed the plaintiff relief to —as plain- to the situation, provided the relief is to punitive sanctions purpose of the provided be that which would tiff imitates to bene- authority, not the vindicate court’s terms both damages action—in in a to the Any benefit fit a to lawsuit. party fu- and as a plaintiff to compensation is incidental from such sanction plaintiff Again, to the employer. ture deterrent instance, in the sexual For and indirect. sanctions, every benefit that punitive I.B, part in su- hypothetical harassment injunction en- from gets an plaintiff impose the court chose that pra, assume sanctions would by compensatory forced $10,- fine of sanction —such as an action for available from equally be to the employer, payable against damages. nothing to affect would do This fine court. contrast, sanctions, provide occurred; Coercive already had the harassment plain- to the unique relief meaningful is a “done point, at harassment paper mill using tiff. undo it. court cannot deal” and the examples of their injunctions. Some enforce say punitive and com- 10. This is not I.E, part will be discussed proper used use be pensatory should never sanctions infra. I.B, hypothetical part supra, assume through punitive or compensatory sanc- impose the court chose to fíne of tions also violate the Constitution. day per Specifically, injunction on the defendant until he such an po- $100 has the mill. tential paper shut down the The defendant run afoul of the constitutional subject is now to an doctrine of ever-increasing pres- separation powers. sure to take the action that the plaintiff An injunction forbidding perfor- pressure seeks—a that would not be avail- mance particular of a act must be based on able ordinary damages an action. forbidden, a conclusion that the act if per- guarantee There is course still no formed, would constitute a violation of the mill, but, the defendant will shut down the Otherwise, law. the court would be en- injunction, plaintiff is joining performance of a perfectly le- greater able to exert pressure on the de- act, gal which the court is without authori- possible fendant to do so than would ty to do. injunction. the absence of the If the law injunction These observations lead to conclu- created, based legislatively then the leg- injunction sion that an where is enforce- likely islature is also to have created rules only through punitive able compensato- regarding the means which the law sanctions,11 ry contempt and not through should be enforced and the appropriate coercive contempt injunctive sanction for a violation of the law. For remedy being given plaintiff is no instance, the harassing behavior of the better the remedy than he could have ob- hypothetical I.B, supra, CEO tained in an after-the-fact action for dam- illegal aas result of Section 703 of Title Therefore, ages. plaintiff necessarily VII of Rights Act Civil adequate remedy has an law—or 2(a)(1)(1994). § U.S.C. proce- 2000e— least a remedy law that is no less ade- dure for enforcing Title VII is set forth quate injunctive than remedy.12 Con- (1994). § 42 U.S.C. 2000e-5 Under that sequently, injunction the principle that an section, employee an alleging a Title VII

will not be entered where plaintiff has violation must first file a charge with the an adequate remedy at law forbids Equal Employment Opportunity Commis- entering of under such cir- (“EEOC”). sion If the EEOC decides not cumstances. bring a civil action against the employ- er, notify it aggrieved employee, must the

D. ninety days who then has in bring which to In addition to violating equitable princi- a civil action on her own. See U.S.C. 5(f)(1). ples, injunction an only successful, § that is enforceable If the action 2000e— I.B, Thus, part supra, injunctions 11. As persuaded change discussed his behavior. only through punitive although injunction are enforceable or com- the would not be enforce- pensatory contempt (be- they contempt sanctions able when for- coercive sanctions (or act), performance bid the performance of an act cause it the command forbids of an performance ongoing duty). provided plaintiff the would have an nevertheless the meaningful with relief in the form of an ex If, however, rights. ante declaration of injunction only through pu- 12. An enforceable only being provided the form of relief the compensatory give nitive or sanctions does plaintiff, appropriate the then rerhedial vehi- plaintiff damages one benefit that a action declaratory judgment, cle is a injunc- not an provide: cannot an ex ante of the declaration (1994). § tion. See 28 U.S.C. 2201 rights parties. of the For consider case in which the preparing defendant is merely The distinction is not a formal one: plot remove trees from a some land. Injunctions, declaratory judgments, unlike his, plaintiff, asserting that the land is seeks implicate contempt powers court's the (based injunction trespass) an the on law of subject enjoined party thus the to sanctions forbidding removing the defendant from the disobey. Declaratory should he judgments plaintiff injunc- trees. The succeeds and the separation-of- therefore do not raise the same defendant, having previ- tion is powers injunctions, issued. concerns as as discussed his, I.D, ously part that the land believed now infra. sum, injunction enforceable an In employ- available of relief types the sanc compensatory or through punitive § 2000e- in 42 U.S.C. forth are set ee criminal an individualized constitutes tions 5(g).13 law new This (respectively). law or civil injunction an obtains employee the Once law but with a existing of the duplicative the to cease employer orders mechanism —con enforcement different completely harassment, can she an thus creates tempt proceedings—and by prescribed procedure circumvent procedures to use different opportunity nec the EEOC is notice to No Congress. different sanctions impose only request need employee essary; un legislature contemplated those If the the court. hearing from cause show Therefore, where the circumstances. der court contempt, held employer is a violation of enjoined is being action punitive compensatory respond can injunction law, an entry of statutory court I.B. If the supra See sanctions. doctrine constitutional implicates sanctions, limi compensatory imposes Virgi v. Wilder powers. See separation of U.S.C. found on relief tations Ass’n, n. 496 U.S. Hosp. nia Fur inapplicable. will be 2000e-5(g) § n. no will thermore, have employer (1990) separation powers (noting that defenses many of the raising means of than rather Congress “that requires ordinary civil in an available would be availability of remedies controls the courts impos If the court action, laches. such as statutes”); NLRB violations of for cf. sanctions, have will effective es Co., Pub. Express Congress conduct ly made criminal (1941) (noting 85 L.Ed. 930 (in light of the criminal has not deemed violation that, specific has except where statutory punishments criminal absence of contemplate found, did not “Congress been VII). Even if Con Title for violations should, pro by contempt that the courts so, the enforcement had done gress Na alleged violations ceedings, try matter for law would be criminal Act”). Relations tional Labor branch, judicial branch.14 executive Thus, of whether regardless E. puni through compensatory is enforced said, just a few I have light of all has intruded the court tive First, I am not order. caveats and execu province legislative compensatory punitive and saying that congression altering the tive branches appropriate are never contempt sanctions and remedies ally-created procedures injunction. enforcing means harassment.15 sexual granting injunc apply equity still 2000e-5(g) specifically authorizes 13.Section view, tions). in this VII. if I am mistaken of Title Even injunctive relief for violations conceivably merely read as that Title VII is provision could This this means injunctive (much re congressional authorization general like exception to the rule an plaintiff has an regardless the 18) of whether law, lief note takes securities see infra reason remedy The more adequate at law. point being away nothing the broader provision that means reading the is able in the text. made when injunctive is allowed merely that relief requirements are equitable the traditional equitable is one the reasons for 14. This adequate an including the absence met— remedy enjoin the com equity will not principle that Philip Morris v. law. See Sanchez Charles a See 11A Alan crime. mission (W.D.Okla. Inc., F.Supp. 630-31 774 al., and Procedure Wright et Federal Practice 1991) a VII (denying injunction in Title an ed.1995). (2d § at 70-71 legal plaintiff's ground case on the v. adequate); Hecht Co. remedies cf. problem by court avoid 15. The could 321, 329-30, Bowles, U.S. that, proceeding conducting contempt a 591-92, (1944) (holding, in re L.Ed. way, duplicated a criminal or every relevant Emergency provision gard to similar a Act, civil trial. rules of traditional Price Control instance, party enjoined if a produce dence. The principles outlined above certain and then destroys documents those permitted, instance, would have for the use documents, coercive sanctions would no injunction in school desegregation longer be available. Under those circum- cases, cases. In such the defendants were stances, a contempt sanction enjoined to specific, undertake a albeit important would be an means of vindicat- complex, act: a unitary Create sys- school authority. injunction court’s tem. Theoretically, the defendants could appropriate- nevertheless would have been jailed have been until such they time as entered, ly because coercive sanctions complied with the court’s mandate.16 Once option injunc- were viable at the time the done, commanded act had been howev- tion was injunction entered and thus the er, the court’s mandate would have been provided meaningful relief to the adverse fully obeyed contempt would have party. purged. been Second, court enter an injunction F. through is not enforceable coercive contempt conclusion, sanctions when the court enters when a party seeks an injunction jurisdiction. in aid of its injunction to create criminal civil and/or if government official is liability via the court’s contempt powers, enjoined perform act, a certain and rather than an to coerce adverse party into another individual tries to prevent the offi- an taking required it, action that party act, cial from performing the the court using legal injunction device of an injunction could issue an commanding the purpose for a for which it was not de- individual to cease his interference. Such signed.17 Bowles, Hecht v. See Co. injunction appropriate would be despite 88 L.Ed. being enforceable coercive (1944) (“The injunctive pro- historical injunction was not deter, cess was designed to pun- not to entered as a form of party relief for a to a ish.”). injunction Such an provides no re- lawsuit, and thus there is no issue (or lief for the plaintiff least no relief party whether would have an ade- that could law), not be obtained at quate remedy at § law. 18 U.S.C. Cf. intrudes areas into re- constitutionally (1994) (authorizing injunctive against relief legislative served for the and executive persons forcefully who interfere Therefore, branches. when a court performance order, of duties under a court relief, request injunctive faced with a regardless enjoined of whether the conduct should requested injunc- consider how the criminal). is also independently tion injunction is to be enforced. If the

Finally, I am not denying impor- cannot using be enforced coercive sanc- tance tions, in modern jurispru- then it should be entered.18 Indeed, approach 16.The more common towas re- if such an action were taken quire school plaintiff deliberately, districts to submit to court a likely it would amount plan creating unitary system; process. school if to the tort abuse of Dykes Cf. Hosemann, court, plan approved Cir.1985) 776 F.2d the court J., jurisdiction (Tjoflat, concurring would implemen- dissenting retain to see if part). plan tation of fulfilling succeeded in See, e.g., court's mandate. Brown v. Board of Kan., Topeka, Educ. F.Supp. exception proves 18. An that the rule of can (D.Kan.1955). pre- When various obstacles in found the area of securities law. Most vented of the fulfillment mandate —for in- by SEC enforcement actions are resolved in- stance, obstinacy by outside (entered interference or junctions pursuant to de- consent certain injunc- crees) officials—courts often issued essentially that the order defendant to (sometimes jurisdiction tions in aid of their nothing obey do than more the securities only through See, punitive contempt enforceable e.g., Clifton, laws. SEC v. 700 F.2d supra) (D.C.Cir.1983). as discussed to injunctions ensure com- These allow pliance with their initial orders. repeat the SEC punish to offenders without the reasons out- for provisions, These II. It I, in error. entered in were lined challenge two ease in this appellants The enforce- are not the provisions dear is that injunction entered in- in the For provisions of coercive sanctions. sets able County stance, a DeKalb first set of that The assume court. the district injunction the violates principal school enjoins the members provisions injunctive gradua- prayer at a student “permitting” Education County Board of the DeKalb present Chandler Jesse tion.20 Plaintiff County DeKalb employees and the and, hearing the after graduation, at the (such and principals system school hearing from a show cause obtains teachers) engage to permit not to students the hearing, At the court.21 the district activity.19 of religious in various forms contempt. in principal the court holds instance, were en- the defendants pre- to be situation, sought harm prayer; ... vocal “permitting joined from the vio- injunction namely, by vented — scriptural or religious devotional Bible Clause Establishment of Chandler’s lation materi- readings; distribution occurred, already have rights22—would announcements; and discus- texts, als, pun- than do no more court could and the nature” devotional/inspirational a sions of at- contempt or for his principal ish The defen- County schools. in the DeKalb for compensate to Chandler tempt “permitting from enjoined were also dants of coercive only form harm caused. benedictions, invocations, prayers, ... circumstances under the imaginable relief or com- graduation at messages devotional imprisoning fining or would consist provisions Similar mencement exercises.” the district time as principal until public-address to on the regard (presumably were included convinced court was principal’s nothing other than school-sponsored assemblies basis systems that he would sincere-sounding promises) and events. Cir.1996). exactly does What for each bring separate lawsuit having a to mean, offense; instead, principal "per- to for a needs the commission graduation? hearing obtain to a request prayer show cause school’s mit" id. at against See 748. aware that merely the offender. if he is sanctions that Does it mean however, only permissible, practice is pray, This he speaker going to then a student Congress specifically authorized has because do Must he not to so? ask the student must 15 U.S.C. Act of 1933. See it in the Securities altogether speaking from prevent student Jones, 77t(b) (1994); v. that, 85 F.2d § (2d SEC student is inclined aware that the once he is Cir.1936) (noting Se- surprises the speaker pray? a student If allege Act, the SEC need curities graduation, principal he, must remedy adequate at law when absence of an seeking injunctive once, physi- attempt stage rush on relief). specific con- This micro- cally the student to remove suggests such a gressional authorization impossible vagueness phone? makes This impermissible if not so practice would be exactly what the know defendants authorized. requires of them. County Board DeKalb 19. members office) (and against successors their only plaintiffs of Education case 21. The injunc- the lawsuit. The are the defendants are Mi- Education County Board of DeKalb employees of the school Jesse, to the tion extends his seventh- son chael Chandler they active ground are "in system on the County school grade in the DeKalb student participation the defen- with" concert and appeared as "next system. Chandler Michael dants. his son. friend” for problems with the in 20. In addition doubt, majority’s seriously light I above, injunction's junction outlined pray- permits a principal analysis, who "permit" command defendants more, er, a student’s has violated without satisfy vague activity too re certain purposes of rights. For Clause Establishment 65(d). See Ameri quirements Fed.R.Civ.P. assume the cor- Bank, my analysis, I will Blood v. Palm Beach can Red Cross conclusion the district court’s (11th Cir.1998); rectness Inc., 143 F.3d contrary. Corp., 78 F.3d Dev. Hughey v. JMS offense; then, repeat law, even under color “willfully subjects any person ... to the deprivation of any coercive would not provided sanctions have rights, privileges, or immunities secured any with relief Chandler because the harm protected by the Constitution or laws of fully would still accomplished. be Cf. ..., the United States shall be fined under Gompers, 221 at U.S. 31 S.Ct. at 498. this title or imprisoned not more than one Thus, only punitive or compensatory sanc- year, or both.”23 The enforcement of this tions would be available. provision job is the of the executive injunction Insofar as the be en would branch, meaning that Congress has deter- sanctions, punitive contempt forced via it mined that the United States Attorney, provide would no direct relief to Chandler. the judiciary, tois determine whether the principal benefit it bring prosecuted. would Chan should be such prosecution, the full panoply of dler would be a constitu- deterrent to the principal, n tional protections apply, would rather than one equally which would be in a available the limited set has been apply held to damages § action for under 42 U.S.C. imposition of criminal contempt (1994). Thus, injunction, if enforced supra sanctions. Furthermore, See note 4. by punitive contempt gives in a prosecution, criminal the principal no Chandler better relief than that which defense, could raise the based on the “fair he could obtain law. warning” requirement of the Due Process Furthermore, enforcing injunction Clause, that section clearly does not punitive contempt sanctions would prohibit “permitting” prayer gradua- raise separation-of-powers problem. A tion. Lanier, See States v. United prerequisite necessary for the issuance (1997) (discussing, in the con- injunction was the district court’s con- text of a 242 prosecution, section the con- clusion enjoined— that the behavior to be stitutional requirement un- statute instance, for permitting gradu- der which the defendant prosecuted ation —would constitute a violation of must have “made it reasonably clear at the rights. Chandler’s constitutional There- relevant time that the defendant’s conduct fore, punitive sanctions response to a criminal”). Such a defense would be injunction violation would in essence unlikely to be available in a contempt hear- punishment for violating Chandler’s ing, because the —unlike rights. constitutional The legislature, explicitly prohibits this behavior. statute — In already prescribed has ap- sum, criminal sanctions based on this propriate criminal punishments for viola- injunction would constitute interference tions of rights constitutional in 18 U.S.C. with the of both legislative role (1994), § 242 whoever, which states that executive branches.24 Conspiracies provision 23. to violate this imprisonment to more than six months (1994), § outlawed 18 U.S.C. cannot be assessed fine of more $1,000. imprisonment authorizes fines and up than Thus, years. ten Attorney if the United States One could contend that implicit- this statute principal could demonstrate that ly con- the sort authorizes of “end run” around with, spired procedure one or attacking, more mem- criminal thus I am County bers of the DeKalb separation-of-powers of Edu- eliminates Board all, permit problem. why Congress cation After pass would could obtain prescribing procedures a law penalties under convictions section 241 in addition to contempts constituting crimes section 242. if it did not injunctions necessarily leading consider Congress responded problem has to (if contempts disobeyed) accept- to be (1994), titled, degree § some in U.S.C. 402 able? “Contempts constituting crimes.’’ Under that legislative history A at the look of section section, constituting contempt where conduct dispels 402 passed this contention. Section 402 was of a district court order also constitutes a prevent in 1914 to the abuse of labor law, alleged crime federal under or state injunctions. Congress was concerned that by jury. is entitled to contemnor a trial Fur- corporations obtaining injunctions were for- thermore, the contemnor bidding cannot be activity; sentenced union injunc- certain these 1276 Fur- contempt proceeding. in a civil teed be en- injunction would this as Insofar suit, 1983 thermore, ordinary section in an sanc- contempt compensatory via

forced to the com- respond imitating the could merely principal be tions, it would failure under 42 to dismiss a motion to Chandler plaint available relief failed, princi- as with Again, If that § 1983. claim. state a U.S.C. Chan- give would im- qualified of a defense could assert pal that which he from liability relief different dler no ground munity, on at law.25 could obtain not is graduation a “permitting” Supreme Court clearly established however, that relief in would, provide It of Neither precedent.27 Circuit Eleventh Congress that which contrary to a manner in a available generally is responses these 1983, enacting section contemplated Thus, unless proceeding. contempt civil separation-of-powers creating a again in effect hearing were cause the show 1983 in a section problem.26 1983 suit— a section into new transformed entitled would be principal proceeding, to raise trial, opportunity jury awith guaran- right jury; this to a trial equity practice, of the traditions summary lure then enforced were tions contempt proceedings. purpose would its of (The unequivocal statement constitutional made.”). Nothing legislative in the in criminal have been now available that are protections 4, case. suggests is the supra history note were that this contempt proceedings, see time.) was The result at that not available remedies of state penalties for violations of exhaustion imposition fact 25. law, jury of a does the benefit actions required but without 1983 section is not criminal plaintiff to minimize was intended seek- requirement Section 402 trial. not alter Pyle, v. 518 States problem. See United of section on the basis ing injunctive this relief 139, (E.D.Pa.1981) (discussing F.Supp. 152 of an the absence demonstrate 1983 must Kern, history); Cong. 48 Rec. 8778 legislative v. remedy at See Wallace adequate law. have, guise ("The (1912) Cir.1975). under 400, (2d courts 407 n. 13 520 F.2d court, arrested and men contempt had of a the intervention for crimes without tried the al- might not arise if problem 26. This (statement Clayton)). Rep. jury.” Clause of Establishment leged violation history, it is diffi- legislative light this In federal, than by a rather rights caused Congress’ stamp 402 as cult to read section circumstances, state, Under those official. injunctions approval on enforceable scheme remedial congressionally-created (or compensatory) sanc- through punitive inapplicable, and a 1983 would of section contrary, 402 arises section On tions. based scheme judicially-created remedial injunctions. See disapproval of such out of Agents Fed- Named v. Six Unknown Bivens or, (“This prevent a man is to bill id. at 388, Narcotics, eral Bureau of powerful, getting rich and say, corporation, (1971), in which midnight, injunction at broad out a blanket implied Consti- from the of action a cause terms, and canopy of heaven its as the (The tution, adequate-remedy- apply. would poor, laborer.” oppressing the humble then remain.) of course problem at-law would (statement Clayton)). The fact that Rep. case, Congress created has problem by address the Congress chose to viola- for the constitutional scheme remedial (when damage end limiting at the back therefore, 1983) ab- (section in the tion imposed) way no contempt sanctions congressional showing that aof sence practice at the front implies approval of to defer inadequate, the courts are scheme issued). (when id. at injunction is end Cf. McCarthy Madigan, 503 v. Congress. See Sabath that Rep. (quoting statement 112 S.Ct. U.S. be, but is as it should bill is not broad (1992). L.Ed.2d direction). right step in the Furthermore, Congress intended so had simply immunity test is qualified "[T]he completely the to abolish a move as radical warning standard fair adaptation principle equity equitable longstanding (and, ulti- give officials law] to [from criminal crime, note supra see enjoin a will surely protection the same mately, governments) something to indicate said would have consequences that liability its Bowles, from civil Co. Hecht an intent. such Cf. traditionally possessed in the have individuals L.Ed. 754 U.S. Lanier, 520 vague statutes.” criminal Congress face of ("We (1944) if but think that cannot 270-71, at 1227. depar- a drastic intended make had defenses, and so forth —the court would be appeal sue this illustrate problem. I violating separation the doctrine of therefore pow- concur the majority opinion. ers. provisions second challenged

The set set, appellants, unlike first was

perfectly appropriate for inclusion an

injunction. provisions Those relate to the

district court’s command that the defen- (in conjunction plaintiffs)

dants individuals, America, nominate three UNITED one of whom STATES of Gary Flewelling, al., E. et purpose would serve as a monitor for the Plaintiffs-Appellees ensuring compliance injunction. with the that, taken, This ais discrete act if not , v. compelled could be through coercive con- DBB, INC., Corp., al., G.S. et Care (for instance, tempt sanctions a fine of Defendants-Appellants. day for each after the deadline that $100 submitted). the list of individuals America, United States of State of It properly subject was therefore of an Florida, Plaintiffs-Appellants injunction.28 Cross-Appellees, conclusion, injunctive the first set of provisions challenged by appellants Services, Gold Inc., Star Medical enforceable or com- al., Unknown Company # et pensatory contempt They sanctions. con- Defendants-Appellees, sequently all problems raise of the dis- I, cussed in and therefore must be Bay Products, Inc., Delphi Area Medical vacated. The second provisions, set of Solutions, Inc., al., Defendants-Ap et however, raise none of problems, those pellees Cross-Appellants. and, for the reasons majority stated 98-3447, Nos. 99-2058. opinion, should be affirmed.

United States Appeals, Court of Eleventh Circuit. III. July 14, 1999. injunction is an remedial important

tool, but also greatly one that has been By an using

abused. al-

ternative means of creating criminal liability, civil ignore courts funda-

and/or equitable

mental princi- constitutional

ples. injunctive Certain provisions at is- unchallenged portions injunc- provisions, enjoin the defendants to proper improper tion are a mix of provi- promulgate policy relating a written to reli- enjoining sions. in addition to schools, gious activity provide the Gide- "permitting” defendants from certain reli- copy injunction, ons with a and to activities, gious enjoins it also them from training conduct a to instruct faculty session "aiding, abetting, commanding, counseling, regarding administrators the Establish- inducing, ordering, procuring, or otherwise ment Clause and the Free Exercise Clause. participating Regardless in” those activities. provisions These performance command the chosen, gerund injunctive these acts, thus, specific form, and are at least in provisions performance still forbid the of an perfectly legitimate. act, and are therefore'inappropriate. Other

Case Details

Case Name: Chandler v. Siegleman

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 13, 1999

Citation: 180 F.3d 1254

Docket Number: 97-6898, 97-6953

Court Abbreviation: 11th Cir.