HR 2679

[Ed Brayton]

I'm surprised there has been little discussion here of HR 2679. Marc 
Stern, who I know is on this list, testified at the House Judiciary 
Committee hearings on the subject. This bill would amend 42 U.S.C. § 
1988 to exempt establishment clause cases from the provision which 
allows the winning plaintiff in a civil rights lawsuit to receive legal 
fee reimbursement. Because such awards are only given if the plaintiff 
wins, I would argue that this is a case of the losing side attempting to 
rig the game to change the outcome. The religious right (for lack of a 
better phrase) is against the bulk of establishment clause jurisprudence 
over the last few decades. They've had little success in court trying to 
turn back those precedents, so they are attempting to make it much more 
difficult for plaintiffs to find representation to bring such suits. I 
call this the Tonya Harding strategy - she knew she couldn't beat Nancy 
Kerrigan in competition, so she had her hobbled on the way to the arena 
instead.

More seriously, I think Marc's testimony was spot on. This law would 
create a clear disparity in cases. The legislation unfairly tips the 
balances against one side in court proceedings without regard to the 
merit of their claims. As an example, let's say a teacher decides to 
lead her class in prayer (despite the multiple court rulings that forbid 
this in the public schools). If the school allows her to do so and the 
family of one of the students in her class files suit on establishment 
clause grounds, they must bear the full cost of the litigation. Even if 
they win the case, if it costs a million dollars to fight such a case 
all the way to the Supreme Court - and it likely would - they have to be 
prepared to pay that million dollars even though the government has 
clearly acted in an unconstitutional manner here. But let's reverse the 
example. Let's say that the school refuses to allow the teacher to lead 
her class in prayer and the teacher decides to sue, claiming that this 
ruling violates her right to free speech and free exercise of religion. 
Because the suit is on grounds other than the establishment clause, this 
legislation would not apply and the teacher could recover the legal 
costs if she wins the suit, while those objecting to the policy on the 
other side, because their suit would be on establishment clause grounds, 
would not.

Any thoughts?

Ed Brayton
<http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=42&sec=1988>
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