                                                                      [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                        FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 OCT 19, 2000
                                                              THOMAS K. KAHN
                                                                   CLERK
                             Nos. 97-6898, 97-6953

                       D.C. Docket No. 96-00169-CV-D-N


MICHAEL CHANDLER, individually and as
next friend of his son, Jesse Chandler; JANE DOE,
individually and as next friend of her daughter, Deborah Doe;

                                                         Plaintiffs-Appellees,

                                      versus

DON SIEGELMAN, in his official capacity
as Governor of the State of Alabama and
President of the State Board of Education,
BILL PRYOR, in his official capacity as
Attorney General of the State of Alabama,
                                                         Defendants-Appellants.



                  Appeals from the United States District Court
                          Middle District of Alabama

                               (October 19, 2000)

  ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, GODBOLD and HILL, Circuit Judges.
HILL, Circuit Judge:

       In 1999, we unanimously vacated the Permanent Injunction entered by the

district court in Chandler v. James, 180 F.3d 1254 (11th Cir. 1999)(Chandler I).

We also denied plaintiffs-appellees’ petition for rehearing. No judge requested a

vote on a rehearing en banc, and the mandate issued. Plaintiffs then filed a petition

for certiorari with the Supreme Court.

       On June 19, 2000, the Supreme Court issued its decision in Santa Fe

Independent School District v. Doe, 120 S.Ct. 2266 (2000). On June 26, 2000, the

Supreme Court granted the petition for certiorari in Chandler I ,1 vacated our

judgment, and remanded the case to us for further consideration in light of Santa

Fe. The case was returned to us on September 1, 2000.

       We have completed our review of Chandler I and have concluded that it is

not in conflict with the Supreme Court’s decision in Santa Fe. Accordingly, we

will reinstate our opinion and judgment in Chandler I . We take this opportunity,

however, to explain how Chandler I fits within the Supreme Court’s analysis in

Santa Fe so that the district court may have this guidance when it revisits its

injunction.


       1
         Pursuant to Rule 43(c)(2), Fed. R. App. P., Governor Don Siegelman was automatically
substituted as a party for his predecessor in office, former Governor Fob James. The case is now
styled Chandler v. Siegelman.

                                               2
                                              I.

       Santa Fe condemns school sponsorship of student prayer. Chandler

condemns school censorship of student prayer. In their view of the proper

relationship between school and prayer, the cases are complementary rather than

inconsistent.2

       In Santa Fe, the Supreme Court reaffirmed that the Establishment Clause of

the First Amendment prohibits a school district from taking affirmative steps to

create a vehicle for prayer to be delivered at a school function. 120 S.Ct. at 2279.

This principle has been established for more than thirty years. Engel v. Vitale, 370

U.S. 421 (1962). The Court applied that principle to hold that Santa Fe’s policy of

allowing students to vote on whether to have prayer before football games

constitutes such an affirmative step. Id. at 2277.

       Several facts were critical to this holding. First, the school board adopted

the following policy:

       The board has chosen to permit a student to deliver a brief invocation
       and/or message to be delivered during the pre-game ceremonies of
       home varsity football games to solemnize the event . . .

Id. at 2273. Second, the school board instituted its policy by establishing a two-


       2
        Furthermore, Santa Fe is limited to the issue of school-sponsored student speakers over
public address systems at official school events. The activities prohibited by the Permanent
Injunction entered in Chandler I are far more extensive.

                                              3
step election process. First, students vote on whether to have an invocation or

message prior to football games. If so, a second election is held to choose a

student to do so. Id. Only that student may speak at the game, and the same

student delivers the message at each game. Id.

      In view of these facts, the Court rejected Santa Fe’s argument that it was

merely providing a neutral accommodation of private religious speech. Id. at 2277.

The Court found significant that the school policy “approve[s] of only one specific

kind of message, an ‘invocation.’” Id. Under these circumstances, the Court

concluded that “the District has failed to divorce itself from the religious content in

the invocations,” and has crossed the line from state neutrality toward religion to

state sponsorship of religion.

      The fatal flaw in the Santa Fe policy was its attempt to disentangle itself

from the religious messages by instituting the student election process. Santa Fe

thought it could satisfy the constitutional requirement for neutrality toward

religious speech by allowing such speech to be chosen by the majority. In the

Court’s view, however:

      Santa Fe’s student election system ensures that only those messages
      deemed ‘appropriate’ under the District’s policy may be delivered.
      That is, the majoritarian process implemented by the District
      guarantees, by definition, that minority candidates will never prevail
      and that their views will be effectively silenced.


                                           4
Id. at 2276. Such a policy, the Court concluded, substitutes the views of the

majority for the government neutrality required by the Establishment Clause.

Thus, it violates the very raison d’être of the Establishment Clause – protection

against the tyranny of a religious majority. Id. at 2277.

      Consequently, the policy is not a neutral accommodation of religion. On the

contrary, “the realities of the situation plainly reveal that [the District’s] policy

involves both perceived and actual endorsement of religion.” Id. at 2277. The

“‘degree of school involvement’ makes it clear that the pre-game prayers bear ‘the

imprint of the State.’” Id. (quoting Lee v. Weisman, 505 U.S. 577 (1992)).

      Because the prayers bear the imprint of the State, they cannot be

characterized as “private” speech protected by the Free Exercise and Free Speech

Clauses. The Court held:

      The delivery of such a message – over the school’s public address
      system, by a speaker representing the student body, under the
      supervision of school faculty, and pursuant to a school policy that
      explicitly and implicitly encourages public prayer – is not properly
      characterized as “private” speech.

Id. at 227 (emphasis added). Since the religious speech produced by Santa Fe’s

policy is sponsored by and, therefore, attributable to the school, it constitutes an

unconstitutional endorsement of religion by the State.

                                           II.


                                            5
        Although the policy at issue in Santa Fe involved student-led invocations

on school property at school-sponsored, school-related events, the Court was

careful to point out that “not every message delivered under such circumstances is

the government’s own.” Id. Thus, Santa Fe does not obliterate the distinction

between State speech and private speech in the school context. It does not reject

the possibility that some religious speech may be truly private even though it

occurs in the schoolhouse. Nor does it hold that all religious speech is inherently

coercive at a school event. On the contrary, the prayer condemned there was

coercive precisely because it was not private. 120 S.Ct. at 2277. The Court’s

holding in Santa Fe is only that State-sponsored, coercive prayer is forbidden by

the Constitution.

       Furthermore, Santa Fe explicitly reaffirms the basic principle that “there is a

crucial difference between government speech endorsing religion, which the

Establishment Clause forbids, and private speech endorsing religion, which the

Free Speech and Free Exercise Clauses protect.” 120 S.Ct. at 2275 (quoting Board

of Ed. v. Mergens, 496 U.S. 226, 250 (1990)).3 Santa Fe leaves unanswered,

however, under what circumstances religious speech in schools can be considered



       3
         As we said in Chandler I, “[r]eligious speech by students does not become forbidden ‘state
action’ the moment the students walk through the schoolhouse door.” 180 F.3d 1261-62.

                                                6
private, and, therefore, protected. This is the answer Chandler I sought to supply.

       In Chandler I, we were asked to review an injunction which

assumed that virtually any religious speech in schools is attributable to the State.

While the district court recognized that a student must be allowed to pray silently

while in school, or even discuss his religious beliefs quietly with others, it enjoined

the school district from permitting any prayer in a public context at any school

function.4 We held that this injunction was overbroad to the extent that it equated

all student religious speech in any public context at school with State speech. In so

doing, it eliminated any possibility of private student religious speech under any

circumstances other than silently or behind closed doors. This the Constitution

neither requires nor permits. The Establishment Clause does not require the

elimination of private speech endorsing religion in public places. The Free

Exercise Clause does not permit the State to confine religious speech to whispers

or banish it to broom closets. If it did, the exercise of one’s religion would not be

free at all.

       It is not the public context that makes some speech the State’s. It is the

entanglement with the State. What the Court condemned in Santa Fe was not


       4
         For example, the Permanent Injunction permits students to “quietly engage in religious
activity during non-instructional times, so long as it does not unduly call attention thereto.”
Chandler I, 180 F.3d at 1260 n.10.

                                              7
private speech endorsing religion, but the delivery of a school-sponsored prayer.

Remove the school sponsorship, and the prayer is private. In Chandler I, we held

that such prayer must be permitted.

      Therefore, if “[n]othing in the Constitution . . . prohibits any public school

student from voluntarily praying at any time before, during, or after the school

day,” Santa Fe, 120 S.Ct.at 2281, then it does not prohibit prayer aloud or in front

of others, as in the case of an audience assembled for some other purpose.

Chandler I, 180 F.3d at 2279. So long as the prayer is genuinely student-initiated,

and not the product of any school policy which actively or surreptitiously

encourages it, the speech is private and it is protected:

      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.

Id. As we said in Chandler I, a policy which tolerates religion does not

improperly endorse it. 180 F.3d 1261.

      Private speech endorsing religion is constitutionally protected – even in

school. Such speech is not the school’s speech even though it may occur in the

school. Such speech is not unconstitutionally coercive even though it may occur

before non-believer students. The injunction entered by the district court in this

                                           8
case proceeded on a contrary assumption and we reaffirm our directive that it must

conform its requirements to the Constitution. We directed the district court to

revisit its injunction in order to ensure that it did not command the school district

to actively prohibit – censor – genuinely student-initiated religious speech, and

we do so again.

                                                  III.

        The Permanent Injunction enjoins the school district from “aiding, abetting,

commanding, counseling, inducing, ordering, or procuring” school organized or

officially sanctioned religious activity. The school district recognizes that it may

not do these things and does not appeal this portion of the injunction. The

injunction also forbids the school district from “permitting” students to speak

religiously in any sort of public context. This it cannot constitutionally do. 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.5



        5
          The district court had before it a great deal of information concerning prior actions of school
personnel indicating a majoritarian purpose to foster one particular religion. Indeed, it was because
of this record that we affirmed the appointment of a monitor. See Chandler I, 180 F.3d at 1265. We
had no occasion, then or now, to inspect any specific activity of students permitted to speak
religiously. Nor shall we speculate. Should the permission we now hold to be required be
transformed into proselytizing by school personnel, the monitor can bring that to the court’s
attention. We shall not assume that those enjoined will not abide the injunction.

                                                   9
       Accordingly, we reaffirm our opinion and reinstate our judgment in

Chandler I. The case is REMANDED to the district court for further proceedings

not inconsistent with this opinion.




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