InnerChange Litigation

[Christopher Lund]

There's one thing that I feel like I'm missing, although (forgive me, moderator) it may be more of a con law or remedies question than a First Amendment question.  I understand that PFM is a "state actor," because its actions are attributable to the state and the state is therefore responsible for PFM's conduct.  But I don't really understand how PFM could itself be liable here or how they could be forced to pay money damages or enjoined.
 
I mean, PFM can't itself violate the Establishment Clause.  And when we say that PFM's acts are really "attributable to the state," that just means that they are also really Iowa's actions.  So Iowa could be liable for them, could be forced to pay for them, or could be enjoined from allowing them to continue in the future.  But saying Iowa is responsible for PFM's actions is completely different from saying that PFM is responsible for Iowa's actions (which is what I think what the Court is doing when it makes PFM liable).  And I wonder if the Eighth Circuit feels this way at least implicitly.  By denying the reimbursement remedy, the Eighth Circuit punishes Iowa, but lets InnerChange off the hook with just a stern warning.
 
Finally, if PFM here can be liable here (which would be not only for damages but also things like attorneys' fees), then doesn't that have far-reaching consequences?  The student speaker in Santa Fe v. Doe, the rabbi in Lee v. Weisman * are they all really individually liable for money damages and attorneys' fees?
 
I just feel like there's something about the Court's state-action jurisprudence that I'm not getting.
 
Best,
Chris
 
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)

>>> <marty.lederman at comcast.net> 12/4/2007 10:51 AM >>>

Pretty devastating for the future of faith-intensive prison programs of this kind.  But not unexpected, of course -- there really wasn't much of an argument on the other side.  (For my previous thoughts on the case, see here (http://balkin.blogspot.com/2006/04/blatantly-unconstitutional-federal.html) and here (http://balkin.blogspot.com/2006/06/trial-court-enjoins-unconstitutional.html). 

The reversal on the reimbursement remedy is based on the notion that although everyone knew damn well this was illegal, they were well-motivated.  I'm dubious about such logic, but I'm not surprised the court reversed on the remedy -- the precedent set by the decision itself is a sufficient deterrent to all such programs going forward.

The most important aspect of the case is the holding that the PFM was itself a state actor, given the prison setting and the control they had over the prisoners.  I've argued that this follows fairly easily from West v. Atkins, but many were dubious.  Thus, even if there were no state funding, as such, such a program could not continue within the prison.

It might be a different story if a prison simply allowed many outside groups to come into the prison occasionally to lead rehab programs.  But that's a far cry from these sorts of programs.


-------------- Original message ----------------------
From: "Christopher Lund" <Lund at mc.edu>
> Attached is a copy of the opinion in Americans United v. Prison
> Fellowship Ministries, which was issued yesterday.  The Eighth Circuit
> affirmed the district court's finding of unconstitutionality, but
> modified the injunction so that PFM now doesn't have to pay back the
> $1.5 million it received from the state under its contract before the
> finding of unconstitutionality.  Thoughts?
>  
> http://www.ca8.uscourts.gov/opndir/07/12/062741P.pdf 
>  
>  
> Christopher C. Lund
> Assistant Professor of Law
> Mississippi College School of Law
> 151 E. Griffith St.
> Jackson, MS  39201
> (601) 925-7141 (office)
> (601) 925-7113 (fax)


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