[PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                  FILED
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                07/13/99
                                                            THOMAS K. KAHN
                              Nos. 97-6898, 97-6953              CLERK

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


MICHAEL CHANDLER, individually and as
next friend of his son, Jesse Chandler,
et al.,
                                                             Plaintiffs-Appellees,

                                      versus

FOB JAMES, JR., in his official capacity
as Governor of the State of Alabama and
President of the State Board of Education,
et al.,

                                                          Defendants-Appellants.



                  Appeals from the United States District Court
                      for the Middle District of Alabama


                                 (July 13, 1999)


Before TJOFLAT, Circuit Judge, and GODBOLD and HILL, Senior Circuit
Judges.
HILL, Senior Circuit Judge:
      Plaintiffs brought this action challenging the facial constitutionality of

Alabama’s statute permitting non-sectarian, non-proselytizing student-initiated

prayer, invocations and benedictions during compulsory or non-compulsory

school-related assemblies, sporting events, graduation ceremonies and other

school-related events. Plaintiffs also challenged the statute as applied by the

DeKalb County School Board. The district court held the statute unconstitutional

on its face, granted plaintiffs partial summary judgment on their claims regarding

the statute as applied, and enjoined defendants from enforcing the statute or

continuing to conduct the challenged practices. Defendants bring this appeal.

                                          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.

Ala. Code § 16-1-20.3(b) (1995).

      In 1996, Michael Chandler, a vice-principal in the DeKalb County school

system, and his son Jesse, a student in that system, brought this action challenging



                                          2
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

       On March 12, 1997, the district court granted partial summary judgment for

the Chandlers, holding the statute facially unconstitutional. On October 29, 1997,

the district court permanently enjoined DeKalb County from enforcing the statute.

On November 12, 1997, the district court issued findings of fact and conclusions of

law in its Supplemental Opinion and Order. That same day, but by separate

Memorandum Opinion and Order, the district court held that DeKalb had engaged

in unconstitutional officially organized or sponsored religious activities, and

granted summary judgment to the Chandlers on their claim that DeKalb had

applied the statute unconstitutionally. The district court appointed a monitor to

oversee the enforcement of the Permanent Injunction. All defendants appealed

from the Permanent Injunction, the Supplemental Opinion and Order, and the

Memorandum Opinion and Order.

       1
        Also named as plaintiffs are Jane Doe and her daughter Deborah Doe.
       2
        The Chandlers subsequently entered into a partial consent decree with the City of
Talladega and the district court dismissed the Talladega defendants from the case in 1996.

                                                3
      In his brief, the Governor of the State of Alabama asserts that the district

court erred in holding the statute facially unconstitutional under the First

Amendment. The Governor contends that the First Amendment’s prohibition

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

Fourteenth Amendment. The district court rejected this argument, as do we.

Cantwell v. Connecticut, 

, 303 (1940). See also Everson v. Board of

Educ., 

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

Amendment, the district court did not err in evaluating Alabama’s statute under it.

Accordingly, we shall affirm the judgment of the district court as to the Governor’s

appeal.3

      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 Governor does not assert any other error by the district court. We
      3


do not decide whether the district court erred in holding the statute facially
unconstitutional for any reason not presented to us..
                                            4
counseling, inducing, ordering, or procuring . . . school organized or officially

sanctioned religious activity in its schools including, but not limited to, vocal

prayer, Bible and devotional or scriptural readings, distribution of religious

materials, texts, or announcements, and discussions of a devotional or inspirational

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

and graduation ceremonies.” Apparently, DeKalb concedes that, under Supreme

Court precedent, it may not prescribe prayer or allow state employees to lead,

participate in or otherwise endorse prayer of any type during curricular or

extracurricular events.4 See Lee v. Weisman, 

, 586 (1992); County of

Allegheny v. ACLU, 

, 594 (1989); Doe v. Duncanville Indep. Sch.

Dist., 

(5th Cir. 1995).

      The Permanent Injunction, however, also prohibits DeKalb from

“permitting” vocal prayer or other devotional speech in its schools. While the

injunction makes clear that it 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


      4
       We do not, therefore, reach any of these issues.

      5
       The Permanent Injunction recites that nothing in it should be read to
“affect the rights of secondary-school students to engage in religious activity
during noninstructional time that is consistent with the federal Equal Access
                                               5
speech in situations which are not purely private, such as aloud in the classroom,

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

assemblies and sporting events, or at a graduation ceremony. Furthermore, the

prohibition applies to bar not only school personnel from leading or participating

in such public or vocal prayer or other devotional speech or Bible reading, but also

requires school officials to forbid students 6 or other private individuals from

doing so while in school or at school-related events.

       DeKalb does appeal this portion of the Permanent Injunction. It contends

that the district court may not constitutionally require it to forbid this speech,

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

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

Free Speech Clause as secular private expression.” Capital Square Review

Advisory Bd. v. Pinette, 

, 760 (1995).7 “There is a crucial difference


Act, 20 U.S.C. Section 4071 et seq., or to quietly engage in religious activity
during noninstructional times.” Permanent Injunction at 4.
       6
        We shall refer to all non-government, private parties collectively as “students.”
       7
         The Departments of Justice and Education issued a statement of principles in the
summer of 1995 “to provide school officials with guidance [concerning] the extent to which
religious expression and activities are permitted in public schools.” The first paragraph of the
statement advises:
        Student prayer and religious discussion: The Establishment clause of the First
        Amendment does not prohibit purely private religious speech by students.
        Students therefore have the same right to engage in individual or group prayer
        and religious discussion during the school day as they do to engage in other

                                                 6
between government speech endorsing religion, which the Establishment Clause

forbids, and private speech endorsing religion, which the Free Speech and Free

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

Mergens, 

, 250 (1990) (quoting Edwards v. Aguillard, 

,

584 (1987)) (emphasis in original).

       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.


      comparable activity. For example, students may read their Bibles or other
      scriptures, say grace before meals, and pray before tests to the same extent they
      may engage in comparable non-disruptive activities. Local school authorities
      possess substantial discretion to impose rules of order and other pedagogical
      restrictions on student activities, but they may not structure or administer such
      rules to discriminate against religious activity or speech.
News Release of U.S. Dep’t of Educ., Aug. 17, 1995, at 3.

       DeKalb also appeals the district court’s decision to appoint a monitor
       8


to enforce its injunction which we discuss below.
                                                7
                                           II.

      The district court’s opinion holds that the Constitution requires it to prohibit

public religious speech in schools because the Establishment Clause is violated if

government permits religious speech – even if initiated by students – in schools or

at school-related events. DeKalb contends that this conclusion is wrong for two

reasons. First, students are not state actors and, therefore, by definition, their

actions cannot tend to “establish” religion in violation of the Establishment Clause.

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

require the State to tolerate genuinely student-initiated religious speech in schools.

Students as State Actors and the Establishment Clause

      The Establishment Clause prohibits Congress – or any other governmental

body – from acting in such a way as to establish a religion. 

.

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. 

. 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


                                           8
accomplish what the State may not do. For example, if a school board may not

constitutionally write and require students to recite a prayer, as it most assuredly

may not, Engel v. Vitale, 

(1962), the school board may not avoid this

prohibition by delegating this function to others. 

(invalidating

school board policy permitting clergy to give prayers at graduation); Karen B. v.

Treen, 

(5th Cir. 1981) (invalidating school board guidelines which

required student or teacher-led prayers in classrooms). Nor may the State establish

a policy which “permits” private parties to speak, but then limits their speech to

prayer or other devotional speech. Ingebretsen v. Jackson Pub. Sch. Dist., 

, 277 (5th Cir. 1996) (authorizing invocations, benedictions and prayers);

ACLU v. Black Horse Pike Reg’l Bd. of Educ., 

(3d Cir. 1996) (school

board policy permitted students to vote to have prayer at graduation); Harris v.

Joint Sch. Dist., 

(9th Cir. 1994), vacated as moot, 

(1995) (school policy permitted student to lead prayer); Jager v. Douglas County

Sch. Dist., 

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

only invocations at school sporting events); Hall v. Board of Sch. Comm’rs, 

(5th Cir. 1981) (school policy permitted devotionals, and only

devotionals); Collins v. Chandler Unified Sch. Dist., 

, 760-61 (9th Cir.

1981) (authorizing invocations, benedictions, and prayers only).


                                           9
      When the State commands religious speech, it steps over the Constitution to

establish religion. In each of these cases, it is the State’s decision to create an

exclusively religious medium which violates the Establishment Clause; not the

private parties’ religious speech. It is not the “permitting” of religious speech

which dooms these policies, but rather the requirement that the speech be religious,

i.e., invocations, benedictions, or prayers.

      This was the holding of the original school prayer case, Engel v. Vitale, in

which the Court observed:

      The Petitioners contend among other things that the state laws
      requiring or permitting use of the Regents’ prayer must be struck
      down as a violation of the Establishment Clause because that prayer
      was composed by governmental officials as a part of a governmental
      program to further religious beliefs. For this reason, petitioners argue,
      the State’s use of the Regents’ prayer in its public school system
      breaches the constitutional wall of separation between Church and
      State. We agree with that contention since 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 

(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




                                           10
any program of governmentally sponsored religious activity.” 

This is all it held.

      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.” 

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.” 

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

history of religion.” The First Amendment, “which tried to put an end to

governmental control of religion and of prayer, was not written to destroy either.”

Rather, it protects freedom of religious expression by forbidding


                                         11
government from requiring us to “speak only the religious thoughts that

government want[s] [us] to speak and to pray only to the God that government

want[s] [us] to pray to.” 

summarized its holding in Engel in the

following way:

         It is neither sacrilegious nor antireligious to say that each separate
         government in this country should stay out of the business of writing
         or sanctioning official prayers and leave that purely religious function
         to the people themselves and to those the people choose to look to for
         religious guidance.

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 First Amendment, nor in any of the Supreme Court’s interpretations of it,

requires it to prohibit the religious speech of private parties – such as students – if

that speech is genuinely privately-initiated, i.e., not commanded by a school board

or state law. On the contrary, DeKalb argues, the First Amendment positively

requires that it tolerate students’ religious speech to the same extent that it permits

students’ secular speech.


         9
        The opt-out provision of the school board’s policy was constitutionally insignificant in
the context of “governmentally composed prayers for religious services” in 

.

                                              12
       The Chandlers, on the other hand, contend that when the State permits

students to speak religiously in situations that are not purely private,10 the State

lends its imprimatur to the speech, thereby endorsing and advancing religion in

violation of the “obligation of the public schools to provide a religiously neutral

environment.” They also argue that all public religious speech in schools is

unconstitutionally coercive of some students because of “peer pressure.”

Consequently, schools must forbid all public religious speech in school, including

genuinely student-initiated religious speech.

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,



       10
          The Permanent Injunction, for example, permits students to “quietly engage in religious
activity during noninstructional times, so long as it does not unduly call attention thereto.”

                                               13
therefore, cannot be permitted to speak freely in school if religion is the topic; the

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

      We disagree. The suppression of student-initiated religious speech is neither

necessary to, nor does it achieve, constitutional neutrality towards religion. For

that reason, the Constitution does not permit its suppression.

      It is true that government must be neutral with respect to religion. But it is

equally true, as Justice Goldberg warned, that an:

      untutored devotion to the concept of neutrality can lead to invocation
      or approval of results which partake not simply of that noninterference
      and noninvolvement with the religious which the Constitution
      commands, but of a brooding and pervasive dedication to the secular
      and a passive, or even active, hostility to the religious. Such results
      are not only not compelled by the Constitution, but, it seems to me,
      are prohibited by it.

School Dist. of Abington Township v. Schempp, 

, 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.




                                           14
Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev.

115, 189 (Winter 1992).

       The prohibition of all religious speech in our public schools implies,

therefore, an unconstitutional disapproval of religion. If endorsement is

unconstitutional because it “sends a message to nonadherents that they are

outsiders,” disapproval is unconstitutional because it “sends the opposite message.”

(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.” 

(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




       11
          We believe that the First Amendment’s requirement that government “tolerate” diverse
political views, including those that are totally antithetical to our constitutionally guaranteed
republican form of government, applies to require that government “tolerate” atheistic views
without also requiring that we eschew religion. Tolerance of disbelief does not require that we
deny our religious heritage, nor elevate atheism over that heritage. The First Amendment
requires only that the State tolerate both, while establishing neither. Americans, however, are
free to prefer one or the other and to express that preference wherever they are permitted to
speak. This means, of course, that a student may choose to express his atheistic views as well as
his religious ones.

                                               15
      Permitting students to speak religiously signifies neither state approval nor

disapproval of that speech. The speech is not the State’s – either by attribution or

by adoption. The permission signifies no more than that the State acknowledges its

constitutional duty to tolerate religious expression. Only in this way is true

neutrality achieved.

      Because genuinely student-initiated religious speech is private speech

endorsing religion, it is fully protected by both the Free Exercise and the Free

Speech Clauses of the Constitution. See 

; Jones v. Clear

Creek Indep. Sch. Dist., 

(5th Cir. 1992). “Students do not shed their

constitutional rights . . . at the schoolhouse gate.” Tinker v. Des Moines Indep.

Community Sch. Dist., 

, 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, 

,

674 (1983). References to our religious heritage are found in the statutorily


                                          16
prescribed national motto on our currency, “In God We Trust,” 36 U.S.C. § 186,

and in the language “one nation under God,” which is part of the Pledge of

Allegiance to our flag – recited by public school children every day. Congress

opens with a prayer, and, indeed, the Supreme Court, itself, hears oral argument in

a chamber decorated with a depiction of Moses and the Ten Commandments. We

celebrate Thanksgiving and Christmas as national holidays, and Congress has

directed the President to proclaim a National Day of Prayer each year “on which

[day] the people of the United States may turn to God in prayer and meditation at

churches, in groups, and as individuals.” 36 U.S.C. § 169h.

       The Constitution does not require a complete separation of church and state

such that religious expression may not be tolerated in our public institutions.12 In

fact, “it affirmatively mandates accommodation, not merely tolerance, of all

religions, and forbids hostility toward any.” 

(emphasis

supplied). The Supreme Court has made clear that “[a]nything less would require


       12
          In fact, the Constitution probably does not require a “wall” at all. The phrase comes
from a letter written by Jefferson who was neither present when the First Amendment was
passed, nor consulted about its language. In a short note to the Danbury Baptist Association
written fourteen years after the Bill of Rights was passed, he made a passing reference to idea
that the First Amendment “build[s] a wall of separation between church and State.” See Wallace
v. Jaffree, 

, 92 (Rehnquist, J., dissenting). In any event, the “wall” concept has been
acknowledged by the Court itself, with what Justice Rehnquist characterized as “embarrassing
candor,” as merely a “blurred, indistinct, and variable barrier,” which “is not wholly accurate”
and can only be “dimly perceived.” 

(quoting Lemon v. Kurtzman, 

, 614
(1971)).

                                               17
the ‘callous indifference’ we have said was never intended by the Establishment

Clause,” and “would bring us into ‘war with our national traditions as embodied in

the First Amendment’s guaranty of the free exercise of religion.’” 

v. Board of Education, 

, 211-12 (1948)).

      The examples cited above all “evidence [our] accommodation of all faiths

and all forms of religious expression, and hostility toward none. Through this

accommodation . . . governmental action has ‘follow[ed] the best of our traditions’

and ‘respect[ed] the religious nature of our people.’” 

(quoting Zorach v. Clauson, 

, 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, 

(1981). The Supreme Court has

recognized that “our precedents plainly contemplate that on occasion some

advancement of religion will result from governmental action.” 

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

upon [religion] is, for that reason alone, constitutionally invalid.” 

Committee for Public Educ. & Religious Liberty v. Nyquist, 

, 771

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

advances religion, does not violate the Establishment Clause because it is private

speech endorsing religion which the First Amendment protects. See Clear 

.

       Finally, the fact that student religious speech may fall on deaf ears does not

make it unconstitutionally coercive. 

. 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 

.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



       13
         Of course, in this case we do not have state action. Private religious speech has even
less potential for coercion.

                                               19
       on the theological merit of those values or of religious belief in
       general, and no one perceives us to have taken such a position.

(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



       14
          Justice Scalia observed in Lee that “We indeed live in a vulgar age. But surely ‘our
social conventions,’ have not coarsened to the point that anyone who does not stand on his chair
and shout obscenities can reasonably be deemed to have assented to everything said in his
presence. . . . I may add, moreover, that maintaining respect for the religious observances of
others is a fundamental civic virtue that government (including the public schools) can and
should cultivate – so that even if it were the case that the displaying of such respect might be
mistaken for taking part in the prayer, I would deny that the dissenter’s interest in avoiding even
the false appearance of participation constitutionally trumps the government’s interest in
fostering respect for religion 

(Scalia, J. dissenting).
       15
         Justice Souter acknowledged this in Lee: “If the State had chosen its graduation day
speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had
individually chosen to deliver a religious message, it would have been harder to attribute an
endorsement of religion to the State. But that is not our 

n. 8.
       16
         The “indirect coercion” identified in Lee by the plurality opinion was exerted over the
audience by the State’s command that there be religious speech at 

-
93. Justice Kennedy’s concern that “in the hands of government what might begin as a tolerant
expression of religious views may end in a policy to indoctrinate and coerce, ” 

(emphasis supplied), does not apply to the case of student-initiated religious speech.

                                                20
content of that speech. They may not. The real issue is what sort of time, place,

and manner limits may be imposed upon genuinely student-initiated religious

speech in schools? When may students pray? Where may they pray? Under what

circumstances may they pray?

      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


                                          21
speak religiously is not the State’s command. Clear 

.17

Such speech is fully protected. 

.

       On the other hand, even genuinely student-initiated religious speech may

constitute state action if the State participates in or supervises the speech. See

.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,

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

prayer “improperly entangles the State in religion and signals an unconstitutional

endorsement of religion.” 

. In upholding the Equal

Access Act, which provides that schools must afford religious groups the same

       17
           The Ninth Circuit also upheld a policy that permitted the top four students to speak on
any topic of their choosing without state approval in Doe v. Madison Sch. Dist., 

(9th Cir. 1998), but the court en banc ordered the district court to dismiss the complaint for lack
of standing and mootness. No. 97-35642 (9th Cir. May 19, 1999).
       18
          While many subsequent courts have cited Duncanville for the proposition that student-
initiated speech at school-related sporting events is unconstitutional, the Fifth Circuit specifically
held that, “[s]tudents may voluntarily pray together, provided such prayer is not done with
school participation or 

(emphasis supplied). Judge Jones, in her
separate concurrence and dissent, pointed out that:
        This decision . . . does not prevent students from exercising their constitutional
        rights of free speech, association and free exercise by praying at appropriate times
        and in an appropriate manner during athletic practices or games. Further, we
        must abide by the Supreme Court’s decisions . . . that prevent active school
        leadership, encouragement or promotion of the prayers. The only questions here
        are how teachers may respond to student-initiated prayers and to what extent the
        school may “supervise” the 

.

                                                 22
access to school facilities as secular groups enjoy, the Supreme Court relied in part

on the act’s express prohibition on teacher participation which “avoids the

problems of the ‘students’ emulation of teachers as role models.’” 

(quoting 

). Therefore, student religious

speech must be without oversight, without supervision,19 subject only to the same

reasonable time, place, and manner restrictions as all other student speech in

school.

       Because religious speech is protected speech, government may not censor its

content. Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 

,

394 (1993) (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 

, 806 (1985)) (the government violates the First Amendment when it


       19
            What constitutes “supervision?” As Judge Jones wrote in Duncanville:

       At a broad level, everything that goes on during practice or competition, including
       student-initiated locker-room or basketball court prayer, is subject to the coaches’
       “supervision.” To outlaw supervision on this level would be to outlaw the
       otherwise constitutional student-led prayers. . . . It must be, then, that the
       injunction pertains only to active supervision and is thus redundant of the cautions
       that the school may not promote, encourage or lead prayers.

.
       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 

. We agree with Judge Jones that, for supervision to
amount to unconstitutional endorsement, it must cross the line into active endorsement,
encouragement or participation.


                                                23
denies access to a speaker solely to suppress the point of view he espouses).

Suppression of religious speech constitutes viewpoint discrimination, the most

egregious form of content-based censorship. Rosenberger v. Rectors & Visitors of

Univ. of Va., 

, 831 (1995). Government may not, therefore, censor

religion from the content of students’ protected speech at school. 

(“Control over access to a nonpublic forum can be based on subject

matter and speaker identity so long as the distinctions drawn are reasonable in light

of the purpose served by the forum and are viewpoint neutral.”) (emphasis

supplied); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 

, 46

(1983) (A “state may reserve the [nonpublic] forum for its intended purposes . . . as

long as the regulation on speech is reasonable and not an effort to suppress

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

      A student’s right to speak religiously is not, however, without limit. The

school may impose the same reasonable restrictions on the time, place, and manner

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

right to express his personal religious beliefs does not extend to using the

machinery of the state as a vehicle for converting his audience. See 

. The Constitution requires that schools permit religious expression, not

religious proselytizing. “The principle that government may accommodate the free


                                          24
exercise of religion does not supersede the fundamental limitations imposed by the

Establishment Clause.” 

. Proselytizing speech is inherently

coercive and, the Constitution prohibits it from the government’s pulpit. 

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, 

, 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.


                                          25
       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.




       20
        This includes restrictions on announcements permitted in the schools’ commencement
programs, and the distribution of religious literature.

                                            26
TJOFLAT, Circuit Judge, specially concurring:

       I agree wholeheartedly with the majority’s analysis in this case. I write

separately, however, to emphasize a more fundamental error made by the district

court. I believe that many provisions of the injunction entered by the district court

were entered in violation of basic principles of equity jurisprudence and

constitutional law – namely, the principle that equity will not intervene where there

is an adequate remedy at law and the constitutional principle of separation of

powers. These principles, for reasons that will be explained hereafter, lead to the

conclusion that a court should not enter an injunction that cannot be enforced

through coercive contempt sanctions. Some of the injunctive provisions at issue

here cannot be so enforced, and therefore must be vacated.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

       1
         The issues I discuss herein were properly not relied upon by the majority opinion for the
simple reason that they were not raised by the appellants either in the district court or on appeal.
They are, however, sufficiently important to our system of jurisprudence that I feel it is
appropriate – indeed necessary – to address them sua sponte in this concurrence.

                                                27
should be entered as a form of relief for a party to a lawsuit only when one type of

contempt sanction – coercive – is potentially available for violations. Part II then

applies this rule to the facts of this case.



                                               I.

        Injunctions are enforced through contempt sanctions. See 18 U.S.C. §

401(3) (1994). When it comes to a judge’s attention that an individual may not be

in compliance with an injunction he has entered, he holds a “show cause” hearing

at which the allegedly noncomplying individual is asked to show cause why he is

disobeying the injunction. If the individual is in fact disobeying the injunction,

and he is unable to provide an acceptable excuse for doing so, then he is subject to

the contempt powers of the court.2 In this part, I discuss the types of contempt

sanctions available to a court, and then discuss how this should impact the court’s

decision whether to grant injunctive relief in the first instance.



                                               A.




        2
        This procedure is laid out in more detail in Wyatt v. Rogers, 

, 1078 n.8
   th
(11 Cir. 1996).

                                               28
       Contempt sanctions take one of three forms: punitive, compensatory, or

coercive. Punitive sanctions punish the contemnor for his conduct, and are

imposed for the purpose of vindicating the authority of the court. See Gompers v.

Buck’s Stove & Range Co., 

, 441, 

, 498, 

(1911).3 For instance, if an individual is served with a subpoena duces tecum but

refuses to produce the requested documents, and the court subsequently holds him

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

the contempt sanction is properly classified as punitive. See Penfield Co. of Cal. v.

SEC, 

, 592-93, 

, 922, 

(1947). In such a

situation, the opposing party is provided no relief, because it gets neither the

requested documents nor the proceeds from the fine. Furthermore, the contemnor

has no way to purge the contempt (in other words, avoid the fine); if he produced

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

required to pay $50. The sanction in such a case is intended to punish the

contemnor for his contempt, thereby vindicating the court’s authority and thus

deterring the contemnor and others from violating subsequent judicial orders

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


       3
        The principles set forth in Gompers have been recently reaffirmed in International
Union, United Mine Workers of America v. Bagwell, 

, 826-29, 

,
2556-58, 

(1994).

                                              29
and therefore many of the constitutional protections available in criminal

proceedings – including the presumption of innocence, the privilege against self-

incrimination, the right to counsel, and the right to a jury trial in serious cases –

must be provided to the alleged contemnor before such sanctions can be imposed.

See Young v. United States ex rel. Vuitton et Fils S.A., 

, 798-99,107

S.Ct. 2124, 2133, 

(1987).4

       The second form of contempt sanction is compensatory. Compensatory

sanctions are civil in nature and compensate the plaintiff for the damage caused by

the contemnor’s contempt. See United States v. United Mine Workers of Am., 

, 303-04, 

, 701, 

(1947). The contempt sanction

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

(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 

Compensatory


       4
        As stated in Young:
      [D]efendants in criminal contempt proceedings must be presumed innocent,
      proved guilty beyond a reasonable doubt, and accorded the right to refuse to
      testify against themselves; must be advised of charges, have a reasonable
      opportunity to respond to them, and be permitted the assistance of counsel and the
      right to call witnesses; must be given a public trial before an unbiased judge; and
      must be afforded a jury trial for serious contempts.

, 107 S.Ct. at 2133 (citations omitted).

                                               30
sanctions, unlike punitive sanctions, provide a direct benefit to the plaintiff. Like

punitive sanctions, however, the contemnor is unable to purge his contempt: Were

President Clinton now to amend his deposition answers to make them completely

accurate, the contempt sanctions would nevertheless remain in force.

       The third form of contempt sanction is coercive. Coercive sanctions are also

civil in nature, and are intended to coerce the contemnor into doing an act that he is

already required to do, but refuses to perform. See 

,

31 S.Ct. at 498. Thus, to use the previously cited example from Penfield, if the

district court had ordered the recipient of the subpoena duces tecum to pay a fine of

$50 per day for every day the recipient failed to produce the requested documents,

such a sanction would be coercive.5 Coercive sanctions benefit the plaintiff by

pressuring the defendant into performing an action that the plaintiff desires to have

performed. See 

31 S.Ct. at 498. They also give the contemnor the

opportunity to purge his contempt: The punishment continues only as long as the

contemnor refuses to comply with the relevant court order. Hence, in regard to

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

his own pocket. See, e.g., Blalock v. United States, 

, 1559 (11th Cir.


       5
        The fine would presumably be paid to the court, although in theory it could be paid to
the opposing party. Regardless of who received the money, because the clear purpose of the fine
would be to pressure the contemnor into compliance, the fine would be classified as coercive.

                                              31
1988) (Tjoflat, J., specially concurring) (quoting In re Nevitt, 

, 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,

, 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 

, 31 S.Ct. at 498. One might

argue that this fact renders meaningless the distinctions among the types of

contempt sanctions – for instance, because all contempt sanctions are somewhat

punitive, it makes no sense to distinguish punitive contempt sanctions from the

other two types of contempt sanctions. This, however, is the equivalent of arguing

that because all men have facial hair, it makes no sense to distinguish between

bearded and non-bearded men. In both cases, the question is one of degree, and the


                                          32
fact that there will be difficult cases at the margins does not deprive the conceptual

categories of their significance. Instead, difficult cases merely require a detailed

“examination of the character of” the sanction being imposed in order to determine

whether it is punitive, compensatory, or coercive. Hicks v. Feiock, 

,

636, 

, 1432, 

(1988).



                                          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




                                          33
harm caused, payable to the plaintiff), or a coercive sanction (such as a fine of

$100 per day until the paper mill is shut down).

       Next, consider an injunction that forbids the performance of a specific act.

For instance, imagine a case in which an employee alleges that her corporate

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

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

claims that this behavior constitutes sexual harassment, in violation of 42 U.S.C. §

2000e-2(a)(1) (1994).6 She files a lawsuit against her employer, seeking an

injunction ordering the employer to cease the harassment.7 She succeeds, and the

injunction is granted. Nevertheless, the CEO continues the inappropriate touching.

The court, after conducting a show cause hearing and finding the employer in

contempt, can assess punitive sanctions (such as a flat fine of $10,000, payable to

the court) or compensatory sanctions (such as a fine equal to the harm caused,


       6
         The employee’s claim would be that the CEO had created an “abusive work
environment,” as opposed to a claim of quid pro quo sexual harassment. See generally Harris v.
Forklift Systems, Inc., 

, 

, 

(1993) (discussing “abusive
work environment” claims).
       7
          Injunctions of this sort actually amount to nothing more than injunctions to “obey the
law,” which, for reasons different from those outlined here, have repeatedly been held invalid.
See, e.g., Payne v. Travenol Labs., Inc., 

, 897-98 (5th Cir. 1978) (holding that
injunctions to “obey the law” violate the requirements of Fed. R. Civ. P. 65(d) that an injunction
“be specific” and “describe in reasonable detail . . . the act or acts sought to be restrained”). (In
Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), this court adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1,
1981.)

                                                 34
payable to the employee). Coercive sanctions, however, are not available, because

the act to be prevented by the injunction has already occurred – in other words,

there is no way to purge the contempt.8 See Gompers, 221 U.S. at 

(“[I]f the defendant does that which he has been commanded not to do, the

disobedience is a thing accomplished. [Contempt sanctions] cannot undo or

remedy what has been done . . . .”).

       To make the point clearer, try to imagine a court attempting to enter coercive

sanctions in the situation outlined above. The court has enjoined the employer not

to harass the employee. The employer nevertheless does so, and, after a show

cause hearing, is held in contempt. The court fines the employer $100 per day

until . . . well, until what? Presumably, until the court is persuaded that the

harassing CEO will not repeat his misbehavior. Thus, after three days of fines, the

CEO contacts the judge and promises that he will never again sexually harass the

employee. The court thinks the CEO was shifting his eyes a bit much when he

made the promise, however, and therefore allows the fines to continue

accumulating. After a week of fines, the CEO makes the same promise, but this


       8
         The situation might be different depending on the nature of the harassment. For
instance, if the harassment consisted in part of the placement of pornographic pictures
throughout the office, the employee could seek an injunction ordering that the pictures be
removed. If the injunction was granted, it could be enforced through coercive sanctions – for
instance, a fine of $200 per day until the pictures were removed.

                                               35
time on his knees and with his hands clearly visible so that the court can see that

the CEO’s fingers are not crossed. The court is still unpersuaded, and continues

allowing the fines to accrue. This exercise would presumably continue until such

time as the court, for whatever reason, decided that the CEO had learned his

lesson.9 Even then, the contempt would not have been purged, because the

harassment would already have been fully accomplished. The point is simply that

when an injunction forbids the performance of an act, coercive sanctions are not

available to enforce the injunction.

       Note that it is not the affirmative or negative phrasing of the injunction that

is critical. An injunction commanding the performance of specific act (for

instance, “shut down the paper mill”) could, in many cases, just as easily be

phrased as an injunction prohibiting a ongoing harm (for instance, “do not operate

the paper mill”). Likewise, an injunction forbidding the performance of a specific

act (for instance, “do not sexually harass the employee”) could, in many cases, be

phrased as an injunction commanding the performance of an ongoing duty (for

instance, “treat male and female employees equally”). Cf. International Union,

United Mine Workers of Am. v. Bagwell, 

, 835, 

,


       9
         In contrast, where the contemnor is enjoined to perform a specific act, promises of
future compliance are neither necessary nor relevant – the contemnor can avoid sanctions by
(and only by) performing the commanded act.

                                               36
2561, 

(1994) (suggesting that an injunction directed at a union

stating, “Do not strike,” is essentially the same as one stating, “Continue

working”). Rather, it is the underlying nature of the injunction – specifically,

whether it is commanding an act that the law requires or proscribing an act that the

law forbids – that determines whether it can be enforced through coercive

sanctions.

      In sum, if an injunction commands the performance of a specific act (such as

shutting down a paper mill), then all three types of sanctions are available to the

court. If, however, an injunction forbids the performance of an act (such as

sexually harassing an employee), then only punitive and compensatory sanctions

are available to the court.



                                          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




                                          37
best – duplicative of the relief available through an action for damages.10 Only

injunctions enforceable through coercive sanctions provide a form of relief that is

unique to equity. They are therefore the only type of injunctions that courts should

enter, on the basis of the rule that injunctions should not be granted where the

plaintiff has an adequate remedy at law. See Weaver v. Florida Power & Light

Co., 

, 773 (11th Cir. 1999).

       Punitive sanctions provide essentially no relief to the plaintiff – as discussed

above, the purpose of punitive sanctions is to vindicate the court’s authority, not to

benefit a party to a lawsuit. Any benefit to the plaintiff from such a sanction is

incidental and indirect. For instance, in the sexual harassment hypothetical in part

, 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



       10
          This is not to say that punitive and compensatory sanctions should never be used to
enforce injunctions. Some examples of their proper use will be discussed in part I.E, infra.

                                               38
inclined to harass the plaintiff in the future. This deterrent, however, is equally

available to the plaintiff through an action for damages: If, instead of seeking an

injunction and then calling for a show cause hearing at which the employer was

assessed punitive sanctions, the plaintiff had simply brought a damages action after

the harassment occurred, the employer would be equally deterred. (Furthermore,

the plaintiff would receive compensation for the harm caused, unlike in the

injunction scenario.) In sum, every benefit that the plaintiff gets from an

injunction enforced by punitive sanctions would be equally available in an action

for damages.

      Compensatory sanctions merely imitate the relief that 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


                                          39
benefit that the plaintiff gets from an injunction enforced by compensatory

sanctions would be equally available from an action for damages.

       Coercive sanctions, in contrast, provide meaningful and unique relief to the

plaintiff. For instance, using the paper mill hypothetical from part 

,

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


       11
        As discussed in part 

, injunctions are enforceable only through punitive or
compensatory contempt sanctions when they forbid the performance of an act (or command the
performance of an ongoing duty).

                                              40
remedy.12 Consequently, the principle that an injunction will not be entered where

the plaintiff has an adequate remedy at law forbids the entering of an injunction

under such circumstances.



                                                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



       12
           An injunction enforceable only through punitive or compensatory sanctions does give a
plaintiff one benefit that a damages action cannot provide: an ex ante declaration of the rights of
the parties. For instance, consider a case in which the defendant is preparing to remove some
trees from a plot of land. The plaintiff, asserting that the land is his, seeks an injunction (based
on the law of trespass) forbidding the defendant from removing the trees. The plaintiff succeeds
and the injunction is issued. The defendant, having previously believed that the land was his,
may now be persuaded to change his behavior. Thus, although the injunction would not be
enforceable through coercive contempt sanctions (because it forbids the performance of an act),
it would nevertheless have provided the plaintiff with meaningful relief in the form of an ex ante
declaration of rights. If, however, this is the only form of relief being provided to the plaintiff,
then the appropriate remedial vehicle is a declaratory judgment, not an injunction. See 28 U.S.C.
§ 2201 (1994).
        The distinction is not merely a formal one: Injunctions, unlike declaratory judgments,
implicate the court’s contempt powers and thus subject the enjoined party to sanctions should he
disobey. Declaratory judgments therefore do not raise the same separation-of-powers concerns
as injunctions, as discussed in part I.D, infra.

                                                41
the law. Otherwise, the court would be enjoining the performance of a perfectly

legal act, which the court is without authority to do.

       If the law on which the injunction is based is legislatively created, then the

legislature is likely also to have created rules regarding the means by which the law

should be enforced and the appropriate sanction for a violation of the law. For

instance, the harassing behavior of the hypothetical CEO in part 

, is

illegal as a result of Section 703 of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-2(a)(1) (1994). The procedure for enforcing Title VII is set forth

in 42 U.S.C. § 2000e-5 (1994). Under that section, an employee alleging a Title

VII violation must first file a charge with the Equal Employment Opportunity

Commission (“EEOC”). If the EEOC decides not to bring a civil action against the

employer, it must notify the aggrieved employee, who then has ninety days in

which to bring a civil action on her own. See 42 U.S.C. § 2000e-5(f)(1). If the

action is successful, the types of relief available to the employee are set forth in 42

U.S.C. § 2000e-5(g).13


       13
          Section 2000e-5(g) specifically authorizes injunctive relief for violations of Title VII.
This provision could conceivably be read as congressional authorization of injunctive relief
regardless of whether the plaintiff has an adequate remedy at law. The more reasonable reading
of the provision is that it means merely that injunctive relief is allowed when the traditional
equitable requirements are met – including the absence of an adequate remedy at law. See
Sanchez v. Philip Morris Inc., 

, 630-31 (W.D. Okla. 1991) (denying an
injunction in a Title VII case on the ground that the plaintiff’s legal remedies are adequate); cf.
Hecht Co. v. Bowles, 

, 329-30, 

, 591-92, 

(1944) (holding,

                                                42
       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. 

part I.B. If the

court imposes compensatory sanctions, the limitations on relief found in 42 U.S.C.

§ 2000e-5(g) will be inapplicable. Furthermore, the employer will have no means

of raising many of the defenses that would be available in an ordinary civil action,

such as laches. If the court imposes punitive sanctions, it will have effectively

made criminal conduct that Congress has not deemed criminal (in light of the

absence of statutory criminal punishments for violations of Title VII). Even if

Congress had done so, the enforcement of the criminal law would be a matter for

the executive branch, not the judicial branch.14 Thus, regardless of whether the

injunction is enforced through compensatory or punitive sanctions, the court has




in regard to a similar provision in the Emergency Price Control Act, that the traditional rules of
equity still apply to the granting of injunctions). Even if I am mistaken in this view, however,
this means merely that Title VII is an exception to the general rule (much like securities law, see
infra note 18) and takes nothing away from the broader point being made in the text.
       14
          This is one of the reasons for the equitable principle that equity will not enjoin the
commission of a crime. See 11A Charles Alan Wright et al., Federal Practice and Procedure §
2942, at 70-71 (2d ed. 1995).

                                                43
intruded on the province of the legislative and executive branches by altering the

congressionally-created procedures and remedies for sexual harassment.15

       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, 

, 508 n.9, 

, 2517 n.9, 

(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., 

, 435, 

, 699, 

(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”).



       15
          The court could avoid this problem only by conducting a contempt proceeding that, in
every relevant way, duplicated a criminal or civil trial.

                                              44
                                           E.

      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. 18 U.S.C. § 1509 (1994)


                                           45
(authorizing injunctive relief against persons who forcefully interfere with the

performance of duties under a court order, regardless of whether the conduct

enjoined is also independently criminal).

       Finally, I am not denying the importance of the injunction in modern

jurisprudence. The principles outlined above would have permitted, for instance,

the use of the injunction in school desegregation cases. In such cases, the

defendants were enjoined to undertake a specific, albeit complex, act: Create a

unitary school system. Theoretically, the defendants could have been jailed until

such time as they 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


       16
           The more common approach was to require school districts to submit to the court a
plan for creating a unitary school system; if the plan was approved by the court, the court would
retain jurisdiction to see if implementation of the plan succeeded in fulfilling the court’s
mandate. See, e.g., Brown v. Board of Educ. of Topeka, Kan., 

, 470 (D. Kan.
1955). When various obstacles prevented fulfillment of the mandate – for instance, outside
interference or obstinacy by certain officials – courts often issued injunctions in aid of their
jurisdiction (sometimes enforceable only through punitive contempt sanctions, as 

) to ensure compliance with their initial orders.

                                               46
party into taking an action required of it, that party is using the legal device of an

injunction for a purpose for which it was not designed.17 See Hecht Co. v. Bowles,

, 329, 

, 592, 

(1944) (“The historical

injunctive process was designed to deter, not to punish.”). Such an injunction

provides no relief for the plaintiff (or at least no relief that could not be obtained at

law), and intrudes into areas constitutionally reserved for the legislative and

executive branches. Therefore, when a court is faced with a request for injunctive

relief, it should consider how the requested injunction is to be enforced. If the

injunction cannot be enforced using coercive sanctions, then it should not be

entered.18



                                                 II.


       17
           Indeed, if such an action were taken by a plaintiff deliberately, it would likely amount
to the tort of abuse of process. Cf. Dykes v. Hosemann, 

, 950 (11th Cir. 1985)
(Tjoflat, J., concurring in part and dissenting in part).
       18
          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, 

, 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 

This practice is permissible, however, only because Congress has specifically authorized it
in the Securities Act of 1933. See 15 U.S.C. § 77t(b) (1994); SEC v. Jones, 

, 17 (2d
Cir. 1936) (noting that, because of the Securities Act, the SEC need not allege the absence of an
adequate remedy at law when seeking injunctive relief). This specific congressional
authorization suggests that such a practice would be impermissible if not so authorized.

                                                 47
       The appellants in this case challenge two sets of provisions in the injunction

entered by the district court. The first set of injunctive provisions enjoins the

members of the DeKalb County Board of Education and the employees of the

DeKalb County school system (such as principals and teachers) not to permit

students to engage in various forms of religious activity.19 For instance, the

defendants were enjoined from “permitting . . . vocal prayer; Bible and religious

devotional or scriptural readings; distribution of religious materials, texts, or

announcements; and discussions of a devotional/inspirational nature” in the

DeKalb County schools. The defendants were also enjoined from “permitting . . .

prayers, invocations, benedictions, or devotional messages at graduation or

commencement exercises.” Similar provisions were included in regard to public-

address systems and school-sponsored assemblies and events.

       These provisions, for the reasons outlined in part I, were entered in error. It

is clear that the provisions are not enforceable through coercive sanctions. For

instance, assume that a DeKalb County school principal violates the injunction by

“permitting” a student prayer at graduation.20 Plaintiff Jesse Chandler is present at


       19
          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.
       20
       In addition to the problems with the injunction outlined above, the injunction’s
command that the defendants not “permit” certain activity is too vague to satisfy the

                                               48
the graduation, and, after hearing the prayer, obtains a show cause hearing from the

district court.21 At the hearing, the court holds the principal in contempt. In this

situation, the harm sought to be prevented by the injunction – namely, the violation

of Chandler’s Establishment Clause rights22 – would already have occurred, and

the court could do no more than punish the principal for his contempt or attempt to

compensate Chandler for the harm caused. The only form of coercive relief

imaginable under the circumstances would consist of fining or imprisoning the

principal until such time as the district court was convinced (presumably on the

basis of nothing other than the principal’s sincere-sounding promises) that he

would not repeat the offense; even then, the coercive sanctions would not have

provided Chandler with any relief because the harm would still be fully



requirements of Fed. R. Civ. P. 65(d). See American Red Cross v. Palm Beach Blood Bank,
Inc., 

, 1411 (11th Cir. 1998); Hughey v. JMS Dev. Corp., 

, 1531 (11th
Cir. 1996). What exactly does it mean, for instance, for a principal to “permit” a prayer at a
school’s graduation? Does it mean merely that if he is aware that a student speaker is going to
pray, then he must ask the student not to do so? Must he prevent the student from speaking
altogether once he is aware that the student is inclined to pray? If a student speaker surprises the
principal with a prayer at graduation, must he, at once, rush on stage and attempt physically to
remove the student from the microphone? This vagueness makes it impossible for the
defendants to know exactly what the injunction requires of them.
       21
        The only plaintiffs in the case against the DeKalb County Board of Education are
Michael Chandler and his son Jesse, a seventh-grade student in the DeKalb County school
system. Michael Chandler appeared as “next friend” for his son.
       22
          I seriously doubt, in light of the majority’s analysis, that a principal who permits a
prayer, without more, has violated a student’s Establishment Clause rights. For purposes of my
analysis, however, I will assume the correctness of the district court’s conclusion to the contrary.

                                                49
accomplished. Cf. Gompers, 221 U.S. at 

. Thus, only punitive

or compensatory sanctions would be available.

      Insofar as the injunction would be enforced via punitive contempt sanctions,

it would provide no direct relief to Chandler. The only benefit it would bring to

Chandler would be a deterrent to the principal, one which would be equally

available in an action for damages under 42 U.S.C. § 1983 (1994). Thus, the

injunction, if enforced by punitive contempt sanctions, gives Chandler no better

relief than that which he could obtain at law.

      Furthermore, enforcing the injunction with punitive contempt sanctions

would raise a separation-of-powers problem. A necessary prerequisite for the

issuance of the injunction was the district court’s conclusion that the behavior to be

enjoined – for instance, permitting a prayer at graduation – would constitute a

violation of Chandler’s constitutional rights. Therefore, punitive sanctions in

response to a violation of the injunction would in essence be punishment for

violating Chandler’s constitutional rights. The legislature, however, has already

prescribed the appropriate criminal punishments for violations of constitutional

rights in 18 U.S.C. § 242 (1994), which states that whoever, under color of law,

“willfully subjects any person . . . to the deprivation of any rights, privileges, or

immunities secured or protected by the Constitution or laws of the United States . .


                                           50
. , shall be fined under this title or imprisoned not more than one year, or both.”23

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. 

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, 

, 267, 

, 1225, 

(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




       23
          Conspiracies to violate this provision are outlawed by 18 U.S.C. § 241 (1994), which
authorizes fines and imprisonment of up to ten years. Thus, if the United States Attorney could
demonstrate that the principal conspired with, for instance, one or more members of the DeKalb
County Board of Education to permit the prayer, it could obtain convictions under section 241 in
addition to section 242.

                                               51
behavior. In sum, criminal sanctions based on this injunction would constitute

interference with the role of both the legislative and executive branches.24



        24
           Congress has responded to this problem to some degree in 18 U.S.C. § 402 (1994),
titled, “Contempts constituting crimes.” Under that section, where conduct constituting
contempt of a district court order also constitutes a crime under federal or state law, the alleged
contemnor is entitled to a trial by jury. Furthermore, the contemnor cannot be sentenced to more
than six months imprisonment and cannot be assessed a punitive fine of more than $1,000.
         One could contend that this statute implicitly authorizes the sort of “end run” around
criminal procedure that I am attacking, and thus eliminates any separation-of-powers problem.
After all, why would Congress pass a law prescribing procedures and penalties for contempts
constituting crimes if it did not consider injunctions necessarily leading to such contempts (if
disobeyed) to be acceptable?
         A look at the legislative history of section 402 dispels this contention. Section 402 was
passed in 1914 to prevent the abuse of labor injunctions. Congress was concerned that
corporations were obtaining injunctions forbidding certain union activity; these injunctions were
then enforced through summary contempt proceedings. (The constitutional protections that are
now available in criminal contempt proceedings, see supra note 4, were not available at that
time.) The result was the imposition of penalties for violations of the criminal law, but without
the benefit of a jury trial. Section 402 was intended to minimize this problem. See United States
v. Pyle, 

, 152 (E.D. Pa. 1981) (discussing legislative history); 48 Cong. Rec.
8778 (1912) (“The courts have, under the guise of contempt of court, had men arrested and tried
for crimes without the intervention of a jury.” (statement of Rep. Clayton)).
         In light of this legislative history, it is difficult to read section 402 as Congress’ stamp of
approval on injunctions enforceable only through punitive (or compensatory) sanctions. On the
contrary, section 402 arises out of disapproval of such injunctions. See 

(“This bill is
to prevent a man or, say, a corporation, rich and powerful, getting out a blanket injunction at
midnight, broad as the canopy of heaven in its terms, and then oppressing the poor, humble
laborer.” (statement of Rep. Clayton)). The fact that Congress chose to address the problem by
limiting the damage at the back end (when contempt sanctions are imposed) in no way implies
approval of the practice at the front end (when the injunction is issued). Cf. 

(quoting
statement of Rep. Sabath that the bill is not as broad as it should be, but is a step in the right
direction).
         Furthermore, had Congress intended so radical a move as to abolish completely the
longstanding equitable principle that equity will not enjoin a crime, see supra note 14, it surely
would have said something to indicate such an intent. Cf. Hecht Co. v. Bowles, 

,
329, 

, 591, 

(1944) (“We cannot but think that if Congress had intended
to make such a drastic departure from the traditions of equity practice, an unequivocal statement
of its purpose would have been made.”). Nothing in the legislative history suggests that this is
the case.

                                                  52
       Insofar as this injunction would be enforced via compensatory contempt

sanctions, it would merely be imitating the relief available to Chandler under 42

U.S.C. § 1983. Again, as with punitive sanctions, the injunction would give

Chandler no relief different from that which he could obtain at law.25

       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


       25
           The fact that exhaustion of state remedies is not required in section 1983 actions does
not alter the requirement that a plaintiff seeking injunctive relief on the basis of section 1983
must demonstrate the absence of an adequate remedy at law. See Wallace v. Kern, 

,
407 n.13 (2d Cir. 1975).
       26
           This problem might not arise if the alleged violation of Establishment Clause rights
was caused by a federal, rather than a state, official. Under those circumstances, the
congressionally-created remedial scheme of section 1983 would be inapplicable, and a
judicially-created remedial scheme based on Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 

, 

, 

(1971), in which a cause of
action is implied from the Constitution, would apply. (The adequate-remedy-at-law problem
would of course remain.) In this case, however, Congress has created a remedial scheme for the
constitutional violation (section 1983) and therefore, in the absence of a showing that the
congressional scheme is inadequate, the courts are to defer to Congress. See McCarthy v.
Madigan, 

, 151, 

, 1090, 

(1992).

                                               53
established by Supreme Court or Eleventh Circuit precedent.27 Neither of these

responses is generally available in a civil contempt proceeding. Thus, unless the

show cause hearing were in effect transformed into a new section 1983 suit – with

a jury trial, the opportunity to raise defenses, and so forth – the court would be

violating the doctrine of separation of powers.

       The second set of provisions challenged by the appellants, unlike the first

set, was perfectly appropriate for inclusion in an injunction. Those provisions

relate to the district court’s command that the defendants (in conjunction with the

plaintiffs) nominate three individuals, one of whom would serve as a monitor for

the purpose of ensuring compliance with the injunction. This is a discrete act that, if

not taken, could be compelled through coercive contempt sanctions (for instance, a fine of $100

for each day after the deadline that the list of individuals was not submitted). It was therefore

properly the subject of an injunction.28

       27
           “[T]he qualified immunity test is simply the adaptation of the fair warning standard
[from criminal law] to give officials (and, ultimately, governments) the same protection from
civil liability and its consequences that individuals have traditionally possessed in the face of
vague criminal statutes.” 

, 

.
       28
          The unchallenged portions of the injunction are a mix of proper and improper
provisions. For instance, in addition to enjoining the defendants from “permitting” certain
religious activities, it also enjoins them from “aiding, abetting, commanding, counseling,
inducing, ordering, procuring, or otherwise participating in” those activities. Regardless of
which gerund is chosen, these injunctive provisions still forbid the performance of an act, and
are therefore inappropriate. Other provisions, however, enjoin the defendants to promulgate a
written policy relating to religious activity in schools, to provide the Gideons with a copy of the
injunction, and to conduct a training session to instruct faculty and administrators regarding the
Establishment Clause and the Free Exercise Clause. These provisions command the

                                                 54
       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.




performance of specific acts, and are thus, at least in form, perfectly legitimate.

                                                 55