In this country, the "American Rule" provides that each party to litigation is responsible to pay its own attorney's fees unless specific authority is granted by statute or a contract allows the assessment of those fees against the other party. This contrasts with the "English Rule," under which the losing party pays the prevailing party's attorneys' fees. Our rule is based on the premise that society would suffer if a person were unwilling to pursue a meritorious claim merely because, if they lost, they would have to pay the opposing party's expenses. There is, however, an exception to this principle under PL 94-559, the 1976 Civil Rights Attorney Fee Act (42 USC, Section 1988).
This federal law was a follow-up to the Civil Rights Act of 1964 (PL 88-352) and was designed to assist people who could not afford counsel in racially-oriented civil rights cases. Congress's intent was to enable poor individuals, seeking redress against discrimination, to attract competent counsel by providing that in the event that the low-income client prevailed, the attorney fees would be paid for by the other side. The courts sometimes refer to attorneys who claim fees under this Act as "private attorney generals," in that they can be considered to be stepping in for the government on anti-discrimination cases.
The recorded congressional intent of the Civil Rights Act of 1964 makes the strong case that its passage was meant to remedy racial discrimination. Consequently, the 1976 Civil Rights Attorneys Fee Act was clearly intended for the payment of fees to attorneys representing low-income clients in racial discrimination cases.
Over the years, the term civil right has moved well beyond the original context of race. Civil rights protections have been broadly redefined and extended through amendments and legislative actions including the Americans with Disabilities Act of 1990 (PL 101-336); the Civil Rights Act of 1991 (PL 102-166), and the Religious Freedom Restoration Act of 1993 (PL 103-141).
The provision of attorneys fees to the prevailing party has been a part of these legislative expansions which have increasingly been used by groups such as the American Civil Liberties Union (ACLU) and Americans United for Separation of Church and State — very often in Establishment Clause cases about religion — to reap huge profits and to serve as a financial weapon against those groups targeted by the ACLU.
A recent example is the case of Kitzmiller v. Dover Area School District in which the ACLU prevailed against the small Pennsylvania school district over its offering of the theory of intelligent design, as an alternative and in addition to, the theory of evolution. Upon winning this case, the ACLU and its allies received $1 million in fees under the Civil Rights Attorneys Fee statute. The amount had been "negotiated down" from over $2 million!
In seeking payment of attorneys' fees from this small school district, the ACLU and its allies sent a clear message to other school districts that they dare not offer the teaching of intelligent design, or they'd pay the price. In fact, one of the local ACLU directors said, "[t]he $2 million was a very conservative number, so they got a terrific deal. The next school district isn't going to get the same break that Dover did."
Here are some other examples of how the ACLU has reaped millions of dollars of taxpayer money by being awarded attorneys fees in Establishment Clause cases:
- Freiler v. Tangipahoa Parish Board of Education (1999), in which the ACLU was awarded $49,445 in attorney's fees in a case contesting a Louisiana policy requiring a disclaimer to be read before teaching students about the theory of evolution.
- A case in London, Ohio (1999) in which a football coach engaged in voluntary prayer with the team. The school board settled to avoid rising legal costs and agreed to pay the ACLU $18,000.
- ACLU Nebraska Foundation v. City of Plattsmouth (2002), where the ACLU received a total of $14,036 including $13,764 for attorney's fees and $272 for expenses, when it sued the City of Plattsmouth for the removal of a Ten Commandments monument.
- Adland v. Russ (2003), where Kentucky passed a law stipulating the placement of a monument containing the Ten Commandments on the capital grounds. A court held that the law violated the Establishment Clause and awarded the ACLU $121,500 in fees.
- ACLU of Tennessee v. Hamilton County (2004), where the ACLU was awarded a total of $35,240 when it sued the County for the removal of Ten Commandments displays on County property. After an appeal, the County ended up paying the ACLU $50,000.
- Barnes-Wallace v. BSA (2004), in which the ACLU sued a city for leasing land to the Boy Scouts because of the group's stance against homosexual behavior. The ACLU received $950,000 of taxpayer money.
- Glassroth v. Moore (2004), where three organizations sued for the removal of a Ten Commandments monument in a courthouse. The State of Alabama settled the case and paid out $500,000 in attorney's fees and about $49,000 in expenses.
- Turner v. Habersham County (2004), where two residents represented by the ACLU claimed that a Ten Commandments display violated the Establishment clause. The county lost at the trial court level and was ordered to pay $74,462 in attorney's fees. The county dropped the appeal over concerns about the mounting costs to taxpayers.
- Staley v. Harris County (2004), in which the Texas county allowed a memorial to a local philanthropist to consist of an open Bible. A plaintiff was awarded $41,000 in court costs and attorney's fees and, after the County filed an Emergency Motion to Stay the Final Judgment, the amount the county was required to pay was increased to $43,961.
- Buono v. Norton (2004), in which the ACLU received $62,794 in attorney's fees and costs after suing the federal government for the removal of a cross from the Mojave National Preserve.
- Doe v. Barrow County (2005), in which the ACLU filed a lawsuit against Barrow County, Georgia to remove a copy of the Ten Commandments from the County Courthouse. The judge ordered the county to pay $150,000 in attorney's fees and expenses to the ACLU.
- Powell v. Bunn (2005), in which the Portland, Oregon Public School District allowed the Boy Scouts to recruit during school hours. The ACLU sued and the taxpayers were required to pay $108,000 in ACLU attorney's fees.
- A case in Humansville, Missouri (2005) where a mother of a student (represented by the ACLU) sued a public school because it had a small Ten Commandments plaque. The school district settled for $45,000 and the school Superintendent lost his job.
- A case in Great Falls, South Carolina (2005) where the ACLU received $65,490 in legal fees after representing a Wicca high priestess who sued the town council for beginning council meetings with a prayer. The City had to pay this massive amount, totaling more than a quarter of the town's annual administrative budget. The ACLU used the threat of further attorney's fees to try to prevent the town from pursuing an appeal to the United States Court of Appeals for the Fourth Circuit.
- Selman v. Cobb County School District (2006), in which the Georgia school district had placed a sticker on school textbooks with the disclaimer, "Evolution is a theory, not a fact." The ACLU sued and received $135,000 in attorney's fees.
The ACLU uses the revenue from these court-ordered fees to fill its own coffers to fund other lawsuits, often very far removed from the original intent of the Civil Rights Attorneys Fee Act. These lawsuits have more and more frequently involved religious expression — a favorite target of the ACLU — which is committed to banning any and all religious references from what it deems to be the "state sector."
But it gets worse. In addition to the money that the ACLU rakes in through the use of the 1976 Civil Rights Attorney Fee Act, it also uses the threat of winning attorney fees as a means of intimidating groups and localities into backing down from taking certain actions out of fear that a lawsuit could incur major, even catastrophic expense.
For example, the Los Angeles County Board of Supervisors decided to remove the tiny gold cross on the county seal rather than defend it against a threatened ACLU lawsuit. Many law firms offered to defend the county for free, but the county declined, fearing the potential costs. Meanwhile, fear of court-ordered fees also caused the city council in Redlands, California to surrender to the ACLU's demand that it remove a cross from its city seal.
The Brunswick County School Board recently voted 32-2 against a proposal to display the Ten Commandments — after the North Carolina General Assembly specifically authorized such displays — but also after the North Carolina ACLU announced that it would sue any district which allowed such a display.
Not all of the ACLU attorney fee grabs have been for religious cases. For instance, it recently negotiated $200,000 in fees from the United States government after winning a case to make anti-terrorism "no fly lists" public information. In addition, the ACLU received over $37,000 in attorney fees for their successful lawsuit against the Loudoun County, Virginia public library system for using software to filter out pornography from public library computers. The ACLU had originally sought over $460,000 in fees in that case!
The ACLU has increasingly exploited a law — originally designed to assist in the private enforcement of laws against racial discrimination — for blatant attacks on religion. Thankfully, Congressional Republicans have responded by introducing legislation in both chambers to amend all federal laws with fee-shifting provisions. Senator Sam Brownback (R-Kansas) has introduced S. 3696, the Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2006, and Representative John Hostettler introduced companion legislation H.R. 2679, the Public Expressions of Religion Act (PERA) in the House.
Both bills would withdraw the authority of judges to award attorneys fees to anyone in lawsuits brought under the religious Establishment Clause of the First Amendment of the U.S. Constitution. They would not prevent the ACLU or others from bringing Establishment Clause cases – but they would make clear that the American taxpayers would no longer be footing the bill for such cases.
As Senator Brownback noted in recent hearings on his bill: "Congress' intent in passing (attorneys fees award legislation) in 1976 was to prevent racial injustice and discrimination…thirty years later these laws are being used simply to purge religious faith — and symbols of any faith — from our society at taxpayer expense."
The American Civil Rights Union applauds the efforts of Senator Brownback and Representative Hostettler to end the abuse of an originally well-intentioned law. H.R. 2679 was passed by the House on September 27 by a vote of 244-to-173. Now it is up to the Senate to act.