Appellee Dayton Christian Schools, Inc. (Dayton), a private
nonprofit corporation that provides elementary and secondary
education, requires that its teachers subscribe to a particular set
of religious beliefs, including belief in the internal resolution
of disputes through the "Biblical chain of command." As a
contractual condition of employment, teachers must agree to present
any grievance to their immediate supervisor, and to acquiesce in
the final authority of Dayton's board of directors, rather than to
pursue a remedy in civil court. After a pregnant teacher was told
that her employment contract would not be renewed because of
Dayton's religious doctrine that mothers should stay home with
their preschool age children, she contacted an attorney, who
threatened Dayton with litigation under state and federal sex
discrimination laws if it did not agree to rehire the teacher for
the coming school year. Dayton then rescinded its nonrenewal
decision, but terminated the teacher because of her violation of
the internal dispute resolution doctrine. The teacher then filed a
charge with appellant Ohio Civil Rights Commission, alleging that
under Ohio statutes Dayton's original nonrenewal decision
constituted unlawful sex discrimination and its termination
decision unlawfully penalized her for asserting her rights.
Ultimately, the Commission initiated administrative proceedings
against Dayton, which answered the complaint by asserting that the
First Amendment prevented the Commission from exercising
jurisdiction over it, since its actions had been taken pursuant to
sincerely held religious beliefs. While the administrative
proceedings were pending, Dayton and others (also appellees here)
filed this action in Federal District Court, seeking an injunction
against the state administrative proceedings on the ground that any
investigation of Dayton's hiring process or any imposition of
sanctions for its nonrenewal or termination decisions would violate
the Religion Clauses of the First Amendment. Without addressing the
Commission's argument that the court should abstain from exercising
its jurisdiction, the District Court refused to issue an
injunction, holding,
inter alia, that the Commission's
proposed action would not violate the First and Fourteenth
Amendments. The Court of Appeals reversed, holding that the
Commission's exercise of jurisdiction would violate both
Page 477 U. S. 620
the Free Exercise Clause and the Establishment Clause of the
First Amendment.
Held:
1. This Court has appellate jurisdiction over this case under 28
U.S.C. § 1264(2), which authorizes review of a court of appeals'
decision holding a state statute unconstitutional as applied to the
facts of the case. Here, the Court of Appeals expressly held that
the Ohio statutory provisions relied on by the teacher, as applied
to authorize the administrative proceedings, were repugnant to the
Religion Clauses. P.
477 U. S.
626.
2. The District Court should have abstained from adjudicating
this case under
Younger v. Harris, 401 U. S.
37, and its progeny.
Younger, which held that a
federal court should not enjoin a pending state criminal proceeding
except when necessary to prevent great and immediate irreparable
injury, was based on concerns for comity and federalism. Such
concerns are equally applicable to other types of state
proceedings, including state administrative proceedings, judicial
in nature, in which important state interests are vindicated, so
long as, in the course of those proceedings, the federal plaintiff
will have a full and fair opportunity to litigate his
constitutional claim. The elimination of prohibited sex
discrimination is a sufficiently important state interest to bring
the present case within the ambit of the
Younger doctrine,
and there is no reason to doubt that Dayton will receive an
adequate opportunity to raise its constitutional claims. Even
assuming that Ohio law is such that the Commission may not consider
the constitutionality of the statute under which it operates, it is
sufficient that, under Ohio law, constitutional claims may be
raised in state court judicial review of the administrative
proceedings. Pp.
477 U. S.
626-629.
766 F.2d 932, reversed and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined.
STEVENS, J., filed an opinion concurring in the judgment, in which
BRENNAN, MARSHALL, and BLACKMUN, JJ., joined,
post, p.
477 U. S.
629.
Page 477 U. S. 621
JUSTICE REHNQUIST delivered the opinion of the Court.
Appellee Dayton Christian Schools, Inc. (Dayton), and various
individuals brought an action in the United States District Court
for the Southern District of Ohio under 42 U.S.C. § 1983, seeking
to enjoin a pending state administrative proceeding brought against
Dayton by appellant Ohio Civil Rights Commission (Commission).
Dayton asserted that the Free Exercise and Establishment Clauses of
the First Amendment prohibited the Commission from exercising
jurisdiction over it or from punishing it for engaging in
employment discrimination. The District Court refused to
Page 477 U. S. 622
issue the injunction on grounds that any conflict between the
First Amendment and the administrative proceedings was not yet
ripe, and that in any case the proposed action of the Commission
violated neither the Free Exercise Clause nor the Establishment
Clause of the First Amendment, as made applicable to the States by
the Fourteenth Amendment. The Court of Appeals for the Sixth
Circuit reversed, holding that the exercise of jurisdiction and the
enforcement of the statute would impermissibly burden appellees'
rights under the Free Exercise Clause and would result in excessive
entanglement under the Establishment Clause. We postponed the
question of jurisdiction pending consideration of the merits. 474
U.S. 978 (1985). We now conclude that we have jurisdiction, and we
reverse, holding that the District Court should have abstained
under our cases beginning with
Younger v. Harris,
401 U. S. 37
(1971).
Dayton is a private nonprofit corporation that provides
education at both the elementary and secondary school levels. It
was formed by two local churches, the Patterson Park Brethren
Church and the Christian Tabernacle, and it is regarded as a
"nondenominational" extension of the Christian education ministries
of these two churches. Dayton's corporate charter establishes a
board of directors (board) to lead the corporation in both
spiritual and temporal matters. App. 11. The charter also includes
a section entitled "Statement of Faith," which serves to restrict
membership on the board and the educational staff to persons who
subscribe to a particular set of religious beliefs. The Statement
of Faith requires each board or staff member to be a born-again
Christian and to reaffirm his or her belief annually in the Bible,
the Trinity, the nature and mission of Jesus Christ, the doctrine
of original sin, the role of the Holy Ghost, the resurrection and
judgment of the dead, the need for Christian unity, and the divine
creation of human beings.
Id. at 5-6.
The board has elaborated these requirements to include a belief
in the internal resolution of disputes through the "Biblical
Page 477 U. S. 623
chain of command." The core of this doctrine, rooted in passages
from the New Testament, is that one Christian should not take
another Christian into courts of the State. Teachers are expected
to present any grievance they may have to their immediate
supervisor, and to acquiesce in the final authority of the board,
rather than to pursue a remedy in civil court. The board has sought
to ensure compliance with this internal dispute resolution doctrine
by making it a contractual condition of employment.
Linda Hoskinson was employed as a teacher at Dayton during the
1978-1979 school year. She subscribed to the Statement of Faith and
expressly agreed to resolve disputes internally through the
Biblical chain of command. In January, 1979, she informed her
principal, James Rakestraw, that she was pregnant. After consulting
with his superiors, Rakestraw informed Hoskinson that her
employment contract would not be renewed at the end of the school
year because of Dayton's religious doctrine that mothers should
stay home with their preschool age children. Instead of appealing
this decision internally, Hoskinson contacted an attorney, who sent
a letter to Dayton's superintendent, Claude Schindler, threatening
litigation based on state and federal sex discrimination laws if
Dayton did not agree to rehire Hoskinson for the coming school
year.
Upon receipt of this letter, Schindler informed Hoskinson that
she was suspended immediately for challenging the nonrenewal
decision in a manner inconsistent with the internal dispute
resolution doctrine. The board reviewed this decision and decided
to terminate Hoskinson. It stated that the sole reason for her
termination was her violation of the internal dispute resolution
doctrine, and it rescinded the earlier nonrenewal decision because
it said that she had not received adequate prior notice of the
doctrine concerning a mother's duty to stay home with her young
children.
Hoskinson filed a complaint with appellant Ohio Civil Rights
Commission (Commission), alleging that Dayton's
Page 477 U. S. 624
nonrenewal decision constituted sex discrimination, in violation
of Ohio Rev.Code Ann. § 4112.02(A) (Supp.1985), and that its
termination decision penalized her for asserting her rights, in
violation of Ohio Rev.Code Ann. § 4112.02(1) (Supp.1985). The
Commission notified Dayton that it was conducting a preliminary
investigation into the matter, and repeatedly urged Dayton to
consider private settlement, warning that failure to do so could
result in a formal adjudication of the matter.
The Commission eventually determined that there was probable
cause to believe that Dayton had discriminated against Hoskinson
based on her sex and had retaliated against her for attempting to
assert her rights in violation of §§ 4112(A) and (1). Pursuant to
Ohio Rev.Code Ann. § 4112.05(B) (Supp.1985), it sent Dayton a
proposed Conciliation Agreement and Consent Order that would have
required Dayton to reinstate Hoskinson with backpay, and would have
prohibited Dayton from taking retaliatory action against any
employee for participating in the preliminary investigation. The
Commission warned Dayton that failure to accede to this proposal or
an acceptable counteroffer would result in formal administrative
proceedings being initiated against it. When Dayton failed to
respond, the Commission initiated administrative proceedings
against it by filing a complaint. Dayton answered the complaint by
asserting that the First Amendment prevented the Commission from
exercising jurisdiction over it, since its actions had been taken
pursuant to sincerely held religious beliefs. App. 103.
While these administrative proceedings were pending, Dayton
filed this action against the Commission in the United States
District Court for the Southern District of Ohio under 42 U.S.C. §
1983, seeking a permanent injunction against the state proceedings
on the ground that any investigation of Dayton's hiring process or
any imposition of sanctions for Dayton's nonrenewal or termination
decisions would violate
Page 477 U. S. 625
the Religion Clauses of the First Amendment. App. 118-120. The
Commission filed a motion to dismiss, arguing,
inter alia,
that the District Court should refrain from enjoining the
administrative proceedings based on federal abstention doctrines.
Record, Doc. No. 9, pp. 7-8. It also filed various documents
defending its action on the merits.
Without addressing the abstention argument, the District Court
refused to issue the injunction.
578 F.
Supp. 1004 (1984). The Court of Appeals for the Sixth Circuit
reversed, as previously noted, holding that the exercise of such
jurisdiction would violate both the Free Exercise Clause and the
Establishment Clause of the First Amendment. 766 F.2d 932
(1985).
We hold that we have appellate jurisdiction under 28 U.S.C. §
1254(2) to review the decision of the Court of Appeals. That
statute authorizes an appeal to this Court "by a party relying on a
State statute held by a court of appeals to be invalid as repugnant
to the Constitution." This authority embraces cases holding a state
statute unconstitutional as applied to the facts of the case.
Dutton v. Evans, 400 U. S. 74,
400 U. S. 76, n.
6 (1970). Here there is no doubt that the decision by the Court of
Appeals satisfies this test. The court expressly held that Ohio
Rev.Code Ann. § 4112.02
et seq. (Supp.1985) is repugnant
to the Free Exercise and Establishment Clauses as applied to
authorize the administrative body to investigate the charges
against Dayton and to decide whether to impose sanctions.
See 766 F.2d at 935, n. 5, 944, 955, 961.
Having taken jurisdiction over the decision below, we now turn
to whether the District Court should have exercised jurisdiction
over the case itself. We conclude that the District Court should
have abstained from adjudicating this case under
Younger v.
Harris, 401 U. S. 37
(1971), and later cases. [
Footnote
1] The Commission urged such abstention in the District
Page 477 U. S. 626
Court, and on oral argument here. Tr. of Oral Arg. 7-8. Dayton
has filed a postargument brief urging that the Commission has
waived any claim to abstention because it had stipulated in the
District Court that that court had jurisdiction of the action. We
think, however, that this argument misconceives the nature of
Younger abstention. It does not arise from lack of
jurisdiction in the District Court, but from strong policies
counseling against the exercise of such jurisdiction where
particular kinds of state proceedings have already been commenced.
A State may of course voluntarily submit to federal jurisdiction
even though it might have had a tenable claim for abstention.
See Brown v. Hotel Employees, 468 U.
S. 491,
468 U. S. 500,
n. 9 (1984);
Ohio Bureau of Employment Services v. Hodory,
431 U. S. 471,
431 U. S.
479-480 (1977);
Sosna v. Iowa, 419 U.
S. 393,
419 U. S.
396-397, n. 3 (1975). But in each of these cases, the
State expressly urged this Court or the District Court to proceed
to an adjudication of the constitutional merits. We think there was
no similar consent or waiver here, and we therefore address the
issue of whether the District Court should have abstained from
deciding the case.
In
Younger v. Harris, supra, we held that a federal
court should not enjoin a pending state criminal proceeding except
in the very unusual situation that an injunction is necessary to
prevent great and immediate irreparable injury. We justified our
decision both on equitable principles,
id. at
401 U. S. 43,
and on the "more vital consideration" of the proper respect for the
fundamental role of States in our federal system.
Id.
at
Page 477 U. S. 627
401 U. S. 44.
Because of our concerns for comity and federalism, we thought that
it was
"perfectly natural for our cases to repeat time and time again
that the
normal thing to do when federal courts are asked
to enjoin pending proceedings in state courts is not to issue such
injunctions."
Id. at
401 U. S. 45
(emphasis added).
We have since recognized that our concern for comity and
federalism is equally applicable to certain other pending state
proceedings. We have applied the
Younger principle to
civil proceedings in which important state interests are involved.
Huffman v. Pursue, Ltd., 420 U. S. 592
(1975);
Juidice v. Vail, 430 U. S. 327
(1977);
Trainor v. Hernandez, 431 U.
S. 434 (1977);
Moore v. Sims, 442 U.
S. 415,
442 U. S. 423
(1979). We have also applied it to state administrative proceedings
in which important state interests are vindicated, so long as, in
the course of those proceedings, the federal plaintiff would have a
full and fair opportunity to litigate his constitutional claim. We
stated in
Gibson v. Berryhill, 411 U.
S. 564,
411 U. S.
576-577 (1973), that
"administrative proceedings looking toward the revocation of a
license to practice medicine may in proper circumstances command
the respect due court proceedings."
Similarly, we have held that federal courts should refrain from
enjoining lawyer disciplinary proceedings initiated by state ethics
committees if the proceedings are within the appellate jurisdiction
of the appropriate State Supreme Court.
Middlesex County Ethics
Committee v. Garden State Bar Assn., 457 U.
S. 423 (1982). Because we found that the administrative
proceedings in Middlesex were "judicial in nature" from the outset,
id. at
457 U. S.
432-434, it was not essential to the decision that they
had progressed to state court review by the time we heard the
federal injunction case. [
Footnote
2]
Page 477 U. S. 628
We think the principles enunciated in these cases govern the
present one. We have no doubt that the elimination of prohibited
sex discrimination is a sufficiently important state interest to
bring the present case within the ambit of the cited authorities.
We also have no reason to doubt that Dayton will receive an
adequate opportunity to raise its constitutional claims. Dayton
contends that the mere exercise of jurisdiction over it by the
state administrative body violates its First Amendment rights. But
we have repeatedly rejected the argument that a constitutional
attack on state procedures themselves "automatically vitiates the
adequacy of those procedures for purposes of the
Younger-
Huffman line of cases."
Moore,
supra, at
442 U. S. 427,
n. 10. Even religious schools cannot claim to be wholly free from
some state regulation.
Wisconsin v. Yoder, 406 U.
S. 205,
406 U. S. 213
(1972). We therefore think that however Dayton's constitutional
claim should be decided on the merits, the Commission violates no
constitutional rights by merely investigating the circumstances of
Hoskinson's discharge in this case, if only to ascertain whether
the ascribed religious-based reason was in fact the reason for the
discharge.
Page 477 U. S. 629
Dayton also contends that the administrative proceedings do not
afford the opportunity to level constitutional challenges against
the potential sanctions for the alleged sex discrimination. In its
reply brief in this Court, the Commission cites several rulings to
demonstrate that religious justifications for otherwise illegal
conduct are considered by it.
See, e.g., In re St. Mary of the
Falls, No. 948 (1975). Dayton in turn relies on a decision of
the Supreme Court of Ohio,
Mobil Oil Corp. v. Rocky River,
38 Ohio St.2d 23, 26, 309 N.E.2d 900, 902 (1974), in which that
court held that a local zoning commission could not consider
constitutional claims. But even if Ohio law is such that the
Commission may not consider the constitutionality of the statute
under which it operates, it would seem an unusual doctrine, and one
not supported by the cited case, to say that the Commission could
not construe its own statutory mandate in the light of federal
constitutional principles.
Cf. NLRB v. Catholic Bishop of
Chicago, 440 U. S. 490
(1979). In any event, it is sufficient under
Middlesex,
supra, at
457 U. S. 436,
that constitutional claims may be raised in state court judicial
review of the administrative proceeding. Section 4112.06 of Ohio
Rev.Code Ann. (1980) provides that any "respondent claiming to be
aggrieved by a final order of the commission . . . may obtain
judicial review thereof." Dayton cites us to no Ohio authority
indicating that this provision does not authorize judicial review
of claims that agency action violates the United States
Constitution.
The judgment of the Court of Appeals is therefore reversed, and
the case remanded for further proceedings consistent with this
opinion.
It is so ordered.
[
Footnote 1]
We think that any ripeness challenge to appellees' complaint is
foreclosed by
Steffel v. Thompson, 415 U.
S. 452 (1974), and
Doran v. Salem Inn, Inc.,
422 U. S. 922
(1975).
Steffel held that a reasonable threat of
prosecution for conduct allegedly protected by the Constitution
gives rise to a sufficiently ripe controversy. 415 U.S. at
415 U. S.
458-460. If a reasonable threat of prosecution creates a
ripe controversy, we fail to see how the actual filing of the
administrative action threatening sanctions in this case does not.
It is true that the administrative body may rule completely or
partially in appellees' favor; but it was equally true that the
plaintiffs in
Steffel and
Doran may have
prevailed had they in fact been prosecuted.
[
Footnote 2]
The lower courts have been virtually uniform in holding that the
Younger principle applies to pending state administrative
proceedings in which an important state interest is involved.
See, e.g., Williams v. Red Bank Board of Education, 662
F.2d 1008 (CA3 1981);
Grandco Corp. v. Rochford, 536 F.2d
197, 206 (CA7 1976); McCune v. Frank, 521 F.2d 1162, 1158 (CA2
1975);
McDonald v. Metro-North Commuter Railroad Division of
Metropolitan Transit Authority, 565 F.
Supp. 37 (SDNY 1983) (Weinfeld, J.). Only the recent case of
Martori Bros. Distributors v. James-Massengale, 781 F.2d
1349, 1354 (CA9 1986), departs from this position, and it does so
without analysis. Of course, if state law expressly indicates that
the administrative proceedings are not even "judicial in nature,"
abstention may not be appropriate.
See Hawaii Housing Authority
v. Midkiff, 467 U. S. 229,
467 U. S.
237-239 (1984).
The application of the
Younger principle to pending
state administrative proceedings is fully consistent with
Patsy
v. Florida Board of Regents, 457 U. S. 496
(1982), which holds that litigants need not exhaust their
administrative remedies prior to bringing a § 1983 suit in federal
court.
Cf. Huffman v. Pursue, Ltd., 420 U.
S. 592,
420 U. S.
607-611 (1975). Unlike
Patsy, the
administrative proceedings here are coercive, rather than remedial,
began before any substantial advancement in the federal action took
place, and involve an important state interest.
JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE BLACKMUN join, concurring in the judgment.
Appellee Dayton Christian Schools, Inc. (School), employed Mrs.
Linda Hoskinson as a teacher. Shortly after
Page 477 U. S. 630
learning that she was pregnant, the School refused to renew Mrs.
Hoskinson's teaching contract for the next academic year. The two
reasons for this decision, according to the School, were (1) the
School's belief that Mrs. Hoskinson should remain at home to
supervise and care for her forthcoming child; and (2) the School's
belief that Mrs. Hoskinson had violated the "Biblical chain of
command" by consulting an attorney regarding her disagreement with
the School's conviction that she remain at home. App. 115
(complaint of Dayton Christian Schools, Inc.,
et al.).
After her termination, Mrs. Hoskinson filed a sex discrimination
charge against the School with appellant Ohio Civil Rights
Commission. The Commission investigated her charge and, upon
finding probable cause to believe that the School had violated §
4112.02 of the Ohio Revised Code, [
Footnote 2/1] scheduled a hearing. The School thereupon
filed this action in Federal District Court seeking declaratory and
injunctive relief.
In the District Court, the School argued that the Ohio
antidiscrimination statute violates the First Amendment Religion
Clauses as applied to sectarian schools. [
Footnote 2/2] The District Court determined that
"[t]he only conduct on the part of the Commission that is
presently being threatened with sufficient
Page 477 U. S. 631
immediacy and reality to present a justiciable controversy is
the investigation, which has already taken place, and the pending
hearing on the complaint filed by the [Commission] concerning the
discharge of Mrs. Hoskinson."
578 F.
Supp. 1004, 1029 (SD Ohio 1984).
Accord, id. at 1039.
On the merits, the District Court concluded that the Commission's
investigation and adjudication of sex discrimination charges was
constitutional. The court recognized that "the statute could be
applied in any number of ways that could impermissibly interfere
with" appellees' religious freedom, but it concluded that these
concerns -- which relate to the possible remedies that might or
might not be ordered if a violation is found -- were "hypothetical
or speculative," and therefore not ripe on the current state of the
record.
Id. at 1028. [
Footnote
2/3]
The Court of Appeals reversed. 766 F.2d 932 (CA6 1985). It
recognized that the School "challenge[d] only the [Commission's]
exercise of jurisdiction and its issuance of the complaint in this
case."
Id. at 950, n. 31. It further acknowledged that "an
order of reinstatement or backpay is not at issue in this case."
Ibid. It nevertheless determined that the "chilling
knowledge" that the School's selection criteria for teachers "will
be reevaluated, and, perhaps, adjusted by the state applying
secular criteria" placed an impermissible burden on appellees'
religious freedoms.
Ibid. Looking into the future, the
Court of Appeals also concluded that the
Page 477 U. S. 632
"highly intrusive nature" of backpay and reinstatement, as well
as the "continuing surveillance implicated by the conciliation
agreement proposed by the Commission" and rejected by the School,
"reveal the
significant risk that the First Amendment will be
infringed.'" Id. at 942-943 (quoting NLRB v. Catholic
Bishop of Chicago, 440 U. S. 490,
440 U. S. 502
(1979)). Accord, 766 F.2d at 951.
Like the majority, I agree with the District Court that neither
the investigation of certain charges nor the conduct of a hearing
on those charges is prohibited by the First Amendment:
"the Commission violates no constitutional rights by merely
investigating the circumstances of Hoskinson's discharge in this
case, if only to ascertain whether the ascribed religious-based
reason was in fact the reason for the discharge."
Ante at
477 U. S.
628.
I further agree with the District Court that any challenge to a
possibly intrusive remedy is premature at this juncture. As the
majority points out,
ante at
477 U. S. 629,
the Commission recognizes religious justifications for conduct that
might otherwise be illegal. Thus, although § 4112.02 forbids
discrimination on the basis of religion, the Commission has
dismissed complaints alleging religious discrimination by religious
educational institutions,
see Menz v. St. Pius School, No.
3823 (1983), and in particular has dismissed complaints by teachers
against sectarian schools for limiting employment to instructors
who subscribe to the appropriate faith,
see In re St. Michael's
School, No. 2726 (1976);
In re St. Mary of the Falls,
No. 948 (1975). It bears emphasis that the Commission dismissed
these complaints only
after investigating charges of
discrimination, finding probable cause that the statute had been
violated, and holding a hearing on the complaint. It therefore
follows that the Commission's finding of probable cause and
decision to schedule a hearing in this case does not also mean that
the Commission intends to impose
any sanction, let alone a
sanction in derogation of the First Amendment's Religion Clauses. I
n view of this fact, the District
Page 477 U. S. 633
Court was entirely correct in concluding that appellees'
constitutional challenge to the remedial provisions of the Ohio
statute is not ripe for review. [
Footnote 2/4] Accordingly, I concur in the judgment.
[
Footnote 2/5]
[
Footnote 2/1]
That section provides, in part:
"§ 4112.02 Unlawful discriminatory practices."
"It shall be an unlawful discriminatory practice:"
"(A) For any employer, because of the race, color, religion,
sex, national origin, handicap, age, or ancestry of any person, to
discharge without just cause, to refuse to hire, or otherwise to
discriminate against that person with respect to hire, tenure,
terms, conditions, or privileges of employment, or any matter
directly or indirectly related to employment."
Ohio Rev.Code Ann. § 4112.02 (Supp.1985).
[
Footnote 2/2]
The School also argued that § 4112.02 of the Ohio Revised Code
is unconstitutional on its face. The District Court held the
section to be neither overbroad nor void for vagueness. Because the
Court of Appeals invalidated the section as applied to the School,
it did not address appellees' facial attack. The School no longer
presses the argument that the statute is unconstitutional on its
face.
[
Footnote 2/3]
"In permitting the [Commission] to exercise jurisdiction over
the instant controversy, the Court has in no way determined either
that the full force of [the Commission's] jurisdiction under [Ohio
Revised Code] Chapter 4112 can be brought to bear on [Dayton
Christian Schools] without impermissibly burdening [appellees']
first amendment rights or, even with respect to the present
controversy, that any remedy deemed appropriate by the [Commission]
should they find [Dayton Christian Schools] liable, would
necessarily present no further first amendment problems. However,
because many of the concerns voiced by [appellees] about state
encroachment on their religious freedoms remain as yet only
possibilities, they cannot serve as the basis for the issuing of a
permanent injunction against the [Commission]."
578 F.
Supp. at 1041.
[
Footnote 2/4]
I fully agree with the majority's general statement that "a
reasonable threat of prosecution for conduct allegedly protected by
the Constitution gives rise to a sufficiently ripe controversy."
Ante at
477 U. S. 626,
n. 1 (citation omitted). Thus, when the constitutional challenge is
to the arrest and initiation of criminal proceedings -- as was the
case with the pamphleteer in
Steffel v. Thompson,
415 U. S. 452,
415 U. S.
458-460 (1974), and the operators of the bars in
Doran v. Salem Inn, Inc., 422 U.
S. 922,
422 U. S.
930-931 (1975) -- a "reasonable threat" of arrest and
prosecution is sufficient to make the controversy ripe for judicial
review. For purposes of this case, it follows from
Steffel
and
Doran that appellees' First Amendment challenge to the
Commission's decision to investigate and adjudicate a charge of sex
discrimination against the School is ripe, because the
investigation has been completed and the matter set for
hearing.
However, it does not follow that a challenge to whatever
remedy might ultimately be fashioned (should liability be
established and relief ordered) is ripe merely upon a showing of a
"reasonable threat" that proceedings will commence.
Durran
and
Steffel do not suggest this result, for they did not
address the constitutionality of possible remedies for the conduct
prosecuted in those cases. In view of the absence of any finding of
liability in this case, and the Commission's demonstrated
willingness to tailor remedies to accommodate the exercise of
religious freedoms, there is plainly no "reasonable threat" that an
overly intrusive remedy will trench on appellees' First Amendment
rights. To hold otherwise would require the District Court to
detail the constitutionally permissible range of the Commission's
sentencing discretion in advance of any facts regarding the
School's discriminatory conduct or any explanation by the
Commission justifying the relief it might fashion. Either or both
of these items of information would inform the First Amendment
analysis, and might prove decisive in determining the
constitutionality of the Commission's hypothesized remedy.
[
Footnote 2/5]
I do not agree with the majority that the doctrine of abstention
associated with
Younger v. Harris, 401 U. S.
37 (1971), required the District Court to dismiss
appellees' complaint. That disposition would presumably deny the
School a federal forum to adjudicate the constitutionality of a
provisional administrative remedy, such as reinstatement pending
resolution of the complainant's charges, even though the
constitutional issues have become ripe for review by the
Commission's entry of a coercive order and the Commission refuses
to address the merits of the constitutional claims.
Younger abstention has never been applied to subject a
federal court plaintiff to an allegedly unconstitutional state
administrative order when the constitutional challenge to that
order can be asserted, if at all, only in state court judicial
review of the administrative proceeding.
See Steffel v.
Thompson, 415 U.S. at
415 U. S. 462 (holding that
Younger abstention
is inappropriate when no state court proceeding "is pending at the
time the federal complaint is filed," because, in that
circumstance, "federal intervention does not result in duplicative
legal proceedings or disruption of the state criminal justice
system"; it cannot "be interpreted as reflecting negatively upon
[a] state court's ability to enforce constitutional principles";
and the absence of a pending state court proceeding deprives "the
federal plaintiff [of] a concrete opportunity to vindicate his
constitutional rights").
See also Middlesex County Ethics
Committee v. Garden State Bar Assn., 457 U.
S. 423,
457 U. S. 437
(1982) (requiring abstention where "an adequate state forum for all
relevant issues has clearly been demonstrated to be available prior
to any proceedings on the merits in federal court" (citation
omitted)).