MICHAEL CHANDLER, individually and as next friend of his son, Jesse Chandler, et al., Plaintiffs-Appellees, versus FOB JAMES, JR., in his official capacity as Governor of the State of Alabama and President of the State Board of Education, et al., Defendants-Appellants.
Nos. 97-6898, 97-6953
United States Court of Appeals, Eleventh Circuit
(July 13, 1999)
D. C. Docket No. 96-CV-169-N. [PUBLISH]
HILL, Senior Circuit Judge:
I.
In 1993, the Alabama Legislature enacted a statute containing the following provision:
(b) On public school, other public, or other property, non-sectarian, non-proselytizing student-initiated voluntary prayer, invocation and/or benedictions, shall be permitted during compulsory or non-compulsory school-related student assemblies, school-related student sporting events, school-related graduation or commencement ceremonies, and other school-related student events.
In 1996, Michael Chandler, a vice-principal in the DeKalb County school system, and his son Jesse, a student in that system, brought this action challenging the facial validity and the application of this statute in the DeKalb County schools.1 Defendants included the Governor of the State of Alabama, the State Superintendent of Education, the members of the State Board of Education, and the Superintendents and members of the boards of education of the City of Talladega and of DeKalb County, Alabama.2
The remainder of the appellants (referred to collectively as DeKalb) do not contest the district court‘s holding that the statute is facially unconstitutional, nor that the DeKalb County schools engaged in unconstitutional officially organized or sponsored religious activities. Therefore, we do not review the district court‘s determinations of these issues.
Neither does DeKalb appeal that portion of the Permanent Injunction entered by the district court which prohibits it from “aiding, abetting, commanding,
The Permanent Injunction, however, also prohibits DeKalb from “permitting” vocal prayer or other devotional speech in its schools. While the injunction makes clear that it does not prohibit students from voluntarily praying while at school or at school-related events, either individually or with each other, so long as the prayer is purely private,5 it prohibits all prayer or other devotional
DeKalb does appeal this portion of the Permanent Injunction. It contends that the district court may not constitutionally require it to forbid this speech, pointing out that the Supreme Court has made very clear that “[p]rivate religious speech, far from being a
Even the Chandlers agree that “[t]he Establishment Clause does not ban prayer. It bans state prayer.” (Plaintiffs’ Reply Brief) (emphasis in original). They contend, however, that student-initiated religious speech in the public schools is state prayer, and, therefore, DeKalb may not permit it.
Our review of the Permanent Injunction, then, is limited to the issue of whether the district court may constitutionally enjoin DeKalb from permitting student-initiated religious speech in its schools.8 For the following reasons, we hold the court may not. We vacate the Permanent Injunction and remand for further proceedings.
The district court‘s opinion holds that the Constitution requires it to prohibit public religious speech in schools because the Establishment Clause is violated if government permits religious speech – even if initiated by students – in schools or at school-related events. DeKalb contends that this conclusion is wrong for two reasons. First, students are not state actors and, therefore, by definition, their actions cannot tend to “establish” religion in violation of the Establishment Clause. Second, the Free Speech and Free Exercise Clauses of the
Students as State Actors and the Establishment Clause
The Establishment Clause prohibits Congress – or any other governmental body – from acting in such a way as to establish a religion. Everson, 330 U.S. at 8. DeKalb argues that because students are not state actors – Congress or a governmental body – their religious speech cannot, by definition, tend to establish a religion.
It is true that ordinarily religious speech by private parties cannot establish religion, even if it occurs in a public institution, such as a school. Mergens, 496 U.S. at 250. On the other hand, it is clear that private parties’ religious speech can violate the Establishment Clause if the State uses such parties as surrogates to
This was the holding of the original school prayer case, Engel v. Vitale, in which the Court observed:
The Petitioners contend among other things that the state laws requiring or permitting use of the Regents’ prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State‘s use of the Regents’ prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.
370 U.S. at 425 (emphasis supplied). The Court held, therefore, that “government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on
Some lower courts have extended Engel to require government to prohibit any public expression of religious belief in schools. Support for this holding is said to be located in the Court‘s observation that the denominational neutrality of the prayer did not “free it from the limitations of the Establishment Clause.” Id. at 430. These courts interpreted this to mean that no religious speech could be tolerated in the public schools because the Establishment Clause forbade it.
This is not what the Court said, however. The denominational neutrality of the Regent‘s prayer could not “free it from the limitations of the Establishment Clause” because the prayer was “commanded” by the State. It really did not matter what the prayer said; no prayer commanded by the State can survive scrutiny under the Establishment Clause.
The Court specifically cautioned that “nothing could be more wrong” than to interpret Engel to require “a hostility toward religion or toward prayer.” Id. at 434 (emphasis supplied). On the contrary, “[t]he history of man is inseparable from the history of religion.” The
It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.
Id. (emphasis supplied). Thus, Engel merely made clear that the Establishment Clause prohibits the government from commanding prayer and prescribing its form.9
But DeKalb does not claim otherwise. DeKalb contends only that nothing in the
Student Speech and the Free Exercise and Free Speech Clauses
This, then, is the question DeKalb asks us to answer. Do school officials have “the ability (and duty) to impose content restrictions on purportedly ‘private’ speakers at school events,” in order to achieve neutrality with respect to religion as the Chandlers contend (Chandlers’ Brief at 27); or do the Free Exercise and Free Speech Clauses require that school officials permit student religious speech at the same time, and in the same place and manner as secular speech, as DeKalb contends? Under the Chandlers’ theory, student religious speech is attributable to the State thereby violating the constitutional requirement of neutrality. Students,
We disagree. The suppression of student-initiated religious speech is neither necessary to, nor does it achieve, constitutional neutrality towards religion. For that reason, the Constitution does not permit its suppression.
It is true that government must be neutral with respect to religion. But it is equally true, as Justice Goldberg warned, that an:
untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive dedication to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it.
School Dist. of Abington Township v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J. concurring).
The discriminatory suppression of student-initiated religious speech demonstrates not neutrality but hostility toward religion because the:
exclusion of religious ideas, symbols, and voices marginalizes religion . . . . Silence about a subject conveys a powerful message. When the public sphere is open to ideas and symbols representing nonreligious viewpoints, culture, and ideological commitment, to exclude all those whose basis is “religious” would profoundly distort public culture.
The prohibition of all religious speech in our public schools implies, therefore, an unconstitutional disapproval of religion. If endorsement is unconstitutional because it “sends a message to nonadherents that they are outsiders,” disapproval is unconstitutional because it “sends the opposite message.” Lynch, 465 U.S. at 688 (O‘Connor, J., concurring). “What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion.” Id. at 692 (emphasis supplied). “Cleansing” our public schools of all religious expression, however, inevitably results in the “establishment” of disbelief – atheism – as the State‘s religion. Since the Constitution requires neutrality, it cannot be the case that government may prefer disbelief over religion.11
Because genuinely student-initiated religious speech is private speech endorsing religion, it is fully protected by both the Free Exercise and the Free Speech Clauses of the Constitution. See Mergens, 496 U.S. at 250; Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992). “Students do not shed their constitutional rights . . . at the schoolhouse gate.” Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969). Religious speech by students does not become forbidden “state action” the moment the students walk through the schoolhouse door.
Furthermore, the Supreme Court has made clear that permitting religious speech or symbols in our public institutions does not automatically constitute an unconstitutional State endorsement of religion. In fact,“[t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” Lynch v. Donnelly, 465 U.S. 668, 674 (1983). References to our religious heritage are found in the statutorily
The Constitution does not require a complete separation of church and state such that religious expression may not be tolerated in our public institutions.12 In fact, “it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” Lynch, 465 U.S. at 673 (emphasis supplied). The Supreme Court has made clear that “[a]nything less would require
The examples cited above all “evidence [our] accommodation of all faiths and all forms of religious expression, and hostility toward none. Through this accommodation . . . governmental action has ‘follow[ed] the best of our traditions’ and ‘respect[ed] the religious nature of our people.‘” Lynch, 465 U.S. at 677-78 (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952)). Genuinely student-initiated religious speech can also be accommodated without resulting in an unconstitutional State endorsement of religion.
Furthermore, even if permitting student-initiated religious speech advances religion in some sense, this does not mean the speech violates the Establishment Clause. Even State action may incidentally advance religion without offending the Constitution. Widmar v. Vincent, 254 U.S. 263 (1981). The Supreme Court has recognized that “our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action.” Lynch, 465 U.S. at 683. “Not every law that confers an ‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid.” Id. (quoting
Finally, the fact that student religious speech may fall on deaf ears does not make it unconstitutionally coercive. Lee, 505 U.S. at 577. In Lee, the Supreme Court was careful to point out that:
We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure social isolation or even anger may be the price of conscience or nonconformity.
505 U.S. at 597.13 Those who do not espouse a speaker‘s religious beliefs are free not to listen, and to express their disagreement by not participating in any way. Accommodation of religious beliefs we do not share is, however, a part of everyday life in this country:
In so acting, we express respect for, but not endorsement of, the fundamental values of others. We act without expressing a position
on the theological merit of those values or of religious belief in general, and no one perceives us to have taken such a position.
Lee, 505 U.S. at 628 (Souter, J. concurring). Respect for the rights of others to express their beliefs, both political and religious, is the price the Constitution extracts for our own liberty.14 This is a price we freely pay. It is not coerced.15 Only when the speech is commanded by the State does it unconstitutionally coerce the listener.16
Ultimately, the issue in this case is not whether school officials may prescribe prayer or enlist surrogates to that end. They may not. Nor is the issue whether school officials may prohibit religious speech in schools, or censor the
In answering these questions, we must fulfill the constitutional requirement of permitting students freely to express their religious beliefs without allowing the machinery of government – the school – to be used to command prayer. This requires that we resolve the tension between the right to pray and the right to be free from government-mandated prayer. This is not an easy task. It would be easy simply to banish prayer from our public institutions, but this would be not only constitutionally incorrect, but also fundamentally unfair to our society.
III.
How, then, does a school accommodate religious expression without commanding it? DeKalb argues that the answer is simple – it is to be “permitted.” Not required. Not commanded. Not even suggested. Simply, permitted. If students, or other private parties, wish to speak religiously while in school or at school-related events, they may exercise their First Amendment right to do so.
The first principle must always be that genuinely student-initiated religious speech must be permitted. A student‘s individual decision to pray or otherwise
On the other hand, even genuinely student-initiated religious speech may constitute state action if the State participates in or supervises the speech. See Duncanville, 70 F.3d at 406-07.18 Religious speech in school by teachers, for example, is especially troublesome because “a teacher‘s [religious] speech can be taken as directly and deliberately representative of the school.” Bishop v. Aronov, 926 F.2d 1066, 1073 (11th Cir. 1991). Teacher participation in student-initiated prayer “improperly entangles the State in religion and signals an unconstitutional endorsement of religion.” Duncanville, 70 F.3d at 406. In upholding the Equal Access Act, which provides that schools must afford religious groups the same
Because religious speech is protected speech, government may not censor its content. Lamb‘s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)) (the government violates the First Amendment when it
A student‘s right to speak religiously is not, however, without limit. The school may impose the same reasonable restrictions on the time, place, and manner of religious speech as it does on secular student speech. Furthermore, a student‘s right to express his personal religious beliefs does not extend to using the machinery of the state as a vehicle for converting his audience. See Abington, 374 U.S. at 228. The Constitution requires that schools permit religious expression, not religious proselytizing. “The principle that government may accommodate the free
IV.
The Permanent Injunction enjoins DeKalb from “aiding, abetting, commanding, counseling, inducing, ordering, or procuring” school organized or officially sanctioned religious activity. DeKalb does not appeal this prohibition. The record in this case reveals, however, that there were many sincere, but unconstitutional efforts by school personnel to do just what the injunction prohibits – to endorse, encourage, or participate in student religious activity. For this reason, the appointment of a monitor by the district court was not an abuse of discretion. See Local 28 of the Sheet Metal Workers’ Int‘l v. EEOC, 478 U.S. 421, 481-82 (1986). The monitor‘s task is to be vigilant in guarding against the repetition of this unconstitutional activity by the schools.
The Permanent Injunction also forbids DeKalb from “permitting” students to speak religiously. This it cannot constitutionally do. So long as school personnel do not participate in or actively supervise student-initiated speech, DeKalb cannot constitutionally prohibit students from speaking religiously and the Permanent Injunction cannot require it to.
We do not undertake to re-write the Permanent Injunction. The district court is in the best position to do that. We note only that the Permanent Injunction may neither prohibit genuinely student-initiated religious speech, nor apply restrictions on the time, place, and manner of that speech which exceed those placed on students’ secular speech.20
Accordingly, the Judgment of the district court is AFFIRMED as to the Governor‘s appeal. As to the remaining defendants’ appeals, the Permanent Injunction is VACATED and the case is REMANDED for further proceedings not inconsistent with this opinion.
I agree wholeheartedly with the majority‘s analysis in this case. I write separately, however, to emphasize a more fundamental error made by the district court. I believe that many provisions of the injunction entered by the district court were entered in violation of basic principles of equity jurisprudence and constitutional law – namely, the principle that equity will not intervene where there is an adequate remedy at law and the constitutional principle of separation of powers. These principles, for reasons that will be explained hereafter, lead to the conclusion that a court should not enter an injunction that cannot be enforced through coercive contempt sanctions. Some of the injunctive provisions at issue here cannot be so enforced, and therefore must be vacated.1
In part I of this concurrence, after recognizing that injunctions are enforced through contempt sanctions, I discuss the types of contempt sanctions generally available to a judge. I then explain that the types of contempt sanctions available to address a violation of a particular injunction depend on the nature of the injunction; not all types of sanctions are available for all injunctions. Finally, I explain why, based on equitable and constitutional considerations, an injunction
I.
Injunctions are enforced through contempt sanctions. See
A.
The second form of contempt sanction is compensatory. Compensatory sanctions are civil in nature and compensate the plaintiff for the damage caused by the contemnor‘s contempt. See United States v. United Mine Workers of Am., 330 U.S. 258, 303-04 (1947). The contempt sanction in the well-known case of Jones v. Clinton, 36 F.Supp.2d 1118 (E.D. Ark. 1999), falls into this category. In that case, the court, having found that the defendant gave false deposition testimony, held the defendant in contempt. The punishment for the contempt was a payment to the plaintiff of the expenses (including attorney‘s fees) caused by the false testimony. See id. at 1134-35. Compensatory
The third form of contempt sanction is coercive. Coercive sanctions are also civil in nature, and are intended to coerce the contemnor into doing an act that he is already required to do, but refuses to perform. See Gompers, 221 U.S. at 441-42. Thus, to use the previously cited example from Penfield, if the district court had ordered the recipient of the subpoena duces tecum to pay a fine of $50 per day for every day the recipient failed to produce the requested documents, such a sanction would be coercive.5 Coercive sanctions benefit the plaintiff by pressuring the defendant into performing an action that the plaintiff desires to have performed. See id. at 442. They also give the contemnor the opportunity to purge his contempt: The punishment continues only as long as the contemnor refuses to comply with the relevant court order. Hence, in regard to coercive sanctions, it is often said that a contemnor carries the key to his prison in his own pocket. See, e.g., Blalock v. United States, 844 F.2d 1546, 1559 (11th Cir. 1988) (Tjoflat, J., specially concurring) (quoting In re Nevitt, 117 F. 448, 461 (8th Cir. 1902)).
The lines separating each type of sanction from the others are not always clear. Consider a situation in which a court imposes a $150 contempt sanction on a party, payable to the adverse party but in no way correlated to the harm suffered by that party. The fact that the sanction is payable to the adverse party (and not the court) makes the sanction appear compensatory, but the fact that the amount of the sanction is unrelated to the harm suffered by the adverse party leads to the conclusion that the sanction is in fact punitive. Cf. Thyssen, Inc. v. S/S Chuen On, 693 F.2d 1171, 1173-74 (5th Cir. 1982). Furthermore, every contempt sanction serves to some degree to vindicate the authority of the court (and thus is somewhat punitive) and to dissuade the contemnor from repeating his misbehavior (and thus is somewhat coercive). See Gompers, 221 U.S. at 443. One might argue that this fact renders meaningless the distinctions among the types of contempt sanctions – for instance, because all contempt sanctions are somewhat punitive, it makes no sense to distinguish punitive contempt sanctions from the other two types of contempt sanctions. This, however, is the equivalent of arguing that because all men have facial hair, it makes no sense to distinguish between bearded and non-bearded men. In both cases, the question is one of degree, and the
B.
The types of sanctions – punitive, compensatory, or coercive – that can be used to enforce an injunction depend on the character of the conduct being enjoined. Consider first an injunction that commands the performance of a specific act. For instance, imagine a case in which the defendant operates a paper mill that is discharging pollutants onto the plaintiff‘s land. The plaintiff brings a lawsuit alleging a nuisance, and seeks an injunction ordering the defendant to shut down the mill. The plaintiff succeeds and the injunction is granted. The defendant, however, continues to operate the paper mill. The court, after conducting a show cause hearing and finding the defendant in contempt, could use any of the types of sanction previously discussed: a punitive sanction (such as a flat fine of $10,000), a compensatory sanction (such as a fine of $5,000, which is roughly equal to the
Next, consider an injunction that forbids the performance of a specific act. For instance, imagine a case in which an employee alleges that her corporate employer, through the actions of its CEO (who is also the majority shareholder), has, on a number of occasions, touched her in inappropriate areas. The employee claims that this behavior constitutes sexual harassment, in violation of
To make the point clearer, try to imagine a court attempting to enter coercive sanctions in the situation outlined above. The court has enjoined the employer not to harass the employee. The employer nevertheless does so, and, after a show cause hearing, is held in contempt. The court fines the employer $100 per day until . . . well, until what? Presumably, until the court is persuaded that the harassing CEO will not repeat his misbehavior. Thus, after three days of fines, the CEO contacts the judge and promises that he will never again sexually harass the employee. The court thinks the CEO was shifting his eyes a bit much when he made the promise, however, and therefore allows the fines to continue accumulating. After a week of fines, the CEO makes the same promise, but this
Note that it is not the affirmative or negative phrasing of the injunction that is critical. An injunction commanding the performance of specific act (for instance, “shut down the paper mill“) could, in many cases, just as easily be phrased as an injunction prohibiting a ongoing harm (for instance, “do not operate the paper mill“). Likewise, an injunction forbidding the performance of a specific act (for instance, “do not sexually harass the employee“) could, in many cases, be phrased as an injunction commanding the performance of an ongoing duty (for instance, “treat male and female employees equally“). Cf. International Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 835 (1994)
In sum, if an injunction commands the performance of a specific act (such as shutting down a paper mill), then all three types of sanctions are available to the court. If, however, an injunction forbids the performance of an act (such as sexually harassing an employee), then only punitive and compensatory sanctions are available to the court.
C.
The types of contempt sanctions available for violation of an injunction determine the effectiveness of the injunctive relief being given to the plaintiff. Specifically, as I discuss in this section, injunctions that are enforceable only through punitive and compensatory sanctions provide relief to a plaintiff that is – at
Punitive sanctions provide essentially no relief to the plaintiff – as discussed above, the purpose of punitive sanctions is to vindicate the court‘s authority, not to benefit a party to a lawsuit. Any benefit to the plaintiff from such a sanction is incidental and indirect. For instance, in the sexual harassment hypothetical in part I.B, supra, assume that the court chose to impose a punitive sanction – such as a fine of $10,000 against the employer, payable to the court. This fine would do nothing to affect the harassment that had already occurred; at this point, the harassment is a “done deal” and the court cannot undo it. In addition, the fine would do nothing to compensate the plaintiff for the harm caused by the harassment. The only benefit provided to the plaintiff from the fine would be a deterrent: Because of the imposition of the fine, the employer might be less
Compensatory sanctions merely imitate the relief that would be provided in a damages action. For instance, returning to the sexual harassment example, assume that the court chose to impose a compensatory sanction on the employer. The court, after hearing argument from both parties, determined that the damage to the plaintiff from the harassment was roughly $5,000, and ordered the employer to pay that amount to the plaintiff. The fine does not affect the prior harassment (it is again a “done deal“), but compensates the plaintiff for the harm she has suffered. In this situation, the relief provided to the plaintiff imitates that which would be provided in a damages action – in terms of both compensation to the plaintiff and as a future deterrent to the employer. Again, as with punitive sanctions, every
Coercive sanctions, in contrast, provide meaningful and unique relief to the plaintiff. For instance, using the paper mill hypothetical from part I.B, supra, assume that the court chose to impose a fine of $100 per day on the defendant until he shut down the paper mill. The defendant is now subject to an ever-increasing pressure to take the action that the plaintiff seeks – a pressure that would not be available through an ordinary damages action. There is of course still no guarantee that the defendant will shut down the mill, but, because of the injunction, the plaintiff is able to exert greater pressure on the defendant to do so than would be possible in the absence of the injunction.
These observations lead to the conclusion that where an injunction is enforceable only through punitive or compensatory contempt sanctions,11 and not through coercive contempt sanctions, the injunctive remedy being given to the plaintiff is no better than the remedy he could have obtained in an after-the-fact action for damages. Therefore, the plaintiff necessarily has an adequate remedy at law – or at least a remedy at law that is no less adequate than the injunctive
D.
In addition to violating equitable principles, an injunction that is enforceable only through punitive or compensatory sanctions may also violate the Constitution. Specifically, such an injunction has the potential to run afoul of the constitutional doctrine of separation of powers.
An injunction forbidding the performance of a particular act must be based on a conclusion that the act forbidden, if performed, would constitute a violation of
If the law on which the injunction is based is legislatively created, then the legislature is likely also to have created rules regarding the means by which the law should be enforced and the appropriate sanction for a violation of the law. For instance, the harassing behavior of the hypothetical CEO in part I.B, supra, is illegal as a result of Section 703 of Title VII of the Civil Rights Act of 1964,
Once the employee obtains an injunction that orders the employer to cease the harassment, however, she can completely circumvent the procedure prescribed by Congress. No notice to the EEOC is necessary; the employee need only request a show cause hearing from the court. If the employer is held in contempt, the court can respond with compensatory or punitive sanctions. See supra part I.B. If the court imposes compensatory sanctions, the limitations on relief found in
In sum, an injunction enforceable only through punitive or compensatory sanctions constitutes an individualized criminal or civil law (respectively). This new law is duplicative of the existing law but with a different enforcement mechanism – contempt proceedings – and thus creates an opportunity to use different procedures and to impose different sanctions from those contemplated by the legislature under the circumstances. Therefore, where the action being enjoined is a violation of statutory law, the entry of an injunction implicates the constitutional doctrine of separation of powers. See Wilder v. Virginia Hosp. Ass‘n, 496 U.S. 498, 508 n.9, 110 S.Ct. 2510, 2517 n.9, 110 L.Ed.2d 455 (1990) (noting that separation of powers requires “that Congress rather than the courts controls the availability of remedies for violations of statutes“); cf. NLRB v. Express Pub. Co., 312 U.S. 426, 435, 61 S.Ct. 693, 699, 85 L.Ed. 930 (1941) (noting that, except where a specific violation has been found, “Congress did not contemplate that the courts should, by contempt proceedings, try alleged violations of the National Labor Relations Act“).
In light of all I have just said, a few caveats are in order. First, I am not saying that punitive and compensatory contempt sanctions are never appropriate means for enforcing an injunction. For instance, if a party is enjoined to produce certain documents and then destroys those documents, coercive sanctions would no longer be available. Under those circumstances, a punitive contempt sanction would be an important means of vindicating the court‘s authority. The injunction nevertheless would have been appropriately entered, because coercive sanctions were a viable option at the time the injunction was entered and thus the injunction provided meaningful relief to the adverse party.
Second, a court may enter an injunction that is not enforceable through coercive contempt sanctions when the court enters the injunction in aid of its jurisdiction. For instance, if a government official is enjoined to perform a certain act, and another individual tries to prevent the official from performing the act, the court could issue an injunction commanding the individual to cease his interference. Such an injunction would be appropriate despite not being enforceable through coercive sanctions, because the injunction was not entered as a form of relief for a party to a lawsuit, and thus there is no issue as to whether that party would have an adequate remedy at law. Cf.
Finally, I am not denying the importance of the injunction in modern jurisprudence. The principles outlined above would have permitted, for instance, the use of the injunction in school desegregation cases. In such cases, the defendants were enjoined to undertake a specific, albeit complex, act: Create a unitary school system. Theoretically, the defendants could have been jailed until such time as they complied with the court‘s mandate.16 Once the commanded act had been done, however, the court‘s mandate would have been fully obeyed and any contempt would have been purged.
F.
In conclusion, when a party seeks an injunction to create criminal and/or civil liability via the court‘s contempt powers, rather than to coerce an adverse
II.
These provisions, for the reasons outlined in part I, were entered in error. It is clear that the provisions are not enforceable through coercive sanctions. For instance, assume that a DeKalb County school principal violates the injunction by “permitting” a student prayer at graduation.20 Plaintiff Jesse Chandler is present at
Insofar as the injunction would be enforced via punitive contempt sanctions, it would provide no direct relief to Chandler. The only benefit it would bring to Chandler would be a deterrent to the principal, one which would be equally available in an action for damages under
Furthermore, enforcing the injunction with punitive contempt sanctions would raise a separation-of-powers problem. A necessary prerequisite for the issuance of the injunction was the district court‘s conclusion that the behavior to be enjoined – for instance, permitting a prayer at graduation – would constitute a violation of Chandler‘s constitutional rights. Therefore, punitive sanctions in response to a violation of the injunction would in essence be punishment for violating Chandler‘s constitutional rights. The legislature, however, has already prescribed the appropriate criminal punishments for violations of constitutional rights in
The enforcement of this provision is the job of the executive branch, meaning that Congress has determined that the United States Attorney, not the judiciary, is to determine whether the principal should be prosecuted. In such a prosecution, the full panoply of constitutional protections would apply, rather than the limited set that has been held to apply to the imposition of criminal contempt sanctions. See supra note 4. Furthermore, in a criminal prosecution, the principal could raise the defense, based on the “fair warning” requirement of the Due Process Clause, that section 242 does not clearly prohibit “permitting” a prayer at graduation. See United States v. Lanier, 520 U.S. 259, 267, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997) (discussing, in the context of a section 242 prosecution, the constitutional requirement that the statute under which the defendant is prosecuted must have “made it reasonably clear at the relevant time that the defendant‘s conduct was criminal“). Such a defense would be unlikely to be available in a contempt hearing, because the injunction – unlike the statute – explicitly prohibits this
It would, however, provide that relief in a manner contrary to that which Congress contemplated in enacting section 1983, again creating a separation-of-powers problem.26 For instance, in a section 1983 proceeding, the principal would be entitled to a trial by jury; this right is not guaranteed in a civil contempt proceeding. Furthermore, in an ordinary section 1983 suit, the principal could respond to the complaint with a motion to dismiss for failure to state a claim. If that failed, the principal could assert a defense of qualified immunity, on the ground that liability for “permitting” a prayer at graduation is not clearly
The second set of provisions challenged by the appellants, unlike the first set, was perfectly appropriate for inclusion in an injunction. Those provisions relate to the district court‘s command that the defendants (in conjunction with the plaintiffs) nominate three individuals, one of whom would serve as a monitor for the purpose of ensuring compliance with the injunction. This is a discrete act that, if not taken, could be compelled through coercive contempt sanctions (for instance, a fine of $100 for each day after the deadline that the list of individuals was not submitted). It was therefore properly the subject of an injunction.28
In conclusion, the first set of injunctive provisions challenged by the appellants are enforceable only through punitive or compensatory contempt sanctions. They consequently raise all of the problems discussed in part I, and therefore must be vacated. The second set of provisions, however, raise none of those problems, and, for the reasons stated in the majority opinion, should be affirmed.
III.
The injunction is an important remedial tool, but also one that has been greatly abused. By using an injunction as an alternative means of creating criminal and/or civil liability, courts ignore fundamental equitable and constitutional principles. Certain injunctive provisions at issue in this appeal illustrate this problem. I therefore concur in the majority opinion.
Notes
Young, 481 U.S. at 798-99.[D]efendants in criminal contempt proceedings must be presumed innocent, proved guilty beyond a reasonable doubt, and accorded the right to refuse to testify against themselves; must be advised of charges, have a reasonable opportunity to respond to them, and be permitted the assistance of counsel and the right to call witnesses; must be given a public trial before an unbiased judge; and must be afforded a jury trial for serious contempts.
70 F.3d at 409. An exception that proves the rule can be found in the area of securities law. Most SEC enforcement actions are resolved by injunctions (entered pursuant to consent decrees) that order the defendant essentially to do nothing more than obey the securities laws. See, e.g., SEC v. Clifton, 700 F.2d 744, 746 (D.C. Cir. 1983). These injunctions allow the SEC to punish repeat offenders without having to bring a separate lawsuit for each offense; instead, the commission needs only to request a show cause hearing to obtain sanctions against the offender. See id. at 748. This practice is permissible, however, only because Congress has specifically authorized it in the Securities Act of 1933. SeeThis decision . . . does not prevent students from exercising their constitutional rights of free speech, association and free exercise by praying at appropriate times and in an appropriate manner during athletic practices or games. Further, we must abide by the Supreme Court‘s decisions . . . that prevent active school leadership, encouragement or promotion of the prayers. The only questions here are how teachers may respond to student-initiated prayers and to what extent the school may “supervise” the prayers.
70 F.3d 410. Supervision cannot mean, therefore, mere presence. Support for this view is found in Mergens in which the Supreme Court found no constitutional infirmity with the provision of the EAA which permits school employees to be present for custodial purposes at religious meetings held on school property. 496 U.S. at 236. We agree with Judge Jones that, for supervision to amount to unconstitutional endorsement, it must cross the line into active endorsement, encouragement or participation. The members of the DeKalb County Board of Education (and their successors in office) are the defendants in the lawsuit. The injunction extends to the employees of the school system on the ground that they are “in active concert and participation with” the defendants.At a broad level, everything that goes on during practice or competition, including student-initiated locker-room or basketball court prayer, is subject to the coaches’ “supervision.” To outlaw supervision on this level would be to outlaw the otherwise constitutional student-led prayers. . . . It must be, then, that the injunction pertains only to active supervision and is thus redundant of the cautions that the school may not promote, encourage or lead prayers.