                                                                    [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                        ________________________           ELEVENTH CIRCUIT
                                                               APR 13, 2001
                          Nos. 97-6898 & 97-6953            THOMAS K. KAHN
                                                                 CLERK
                        _______________________
                     D.C. Docket No. 96-00169-CV-D-N


MICHAEL CHANDLER, individually and as next
friend of his son, Jesse Chandler, et al.,
                                                            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
                     for the Middle District of Alabama
                         _______________________
                              (April 13, 2001)

                ON PETITION FOR REHEARING EN BANC

                         (Opinion October 19, 2000)

Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,
Circuit Judges.
O R D E R:

      The Court having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.




/s/ R. LANIER ANDERSON
       CHIEF JUDGE




                                         2
BARKETT, Circuit Judge, dissenting:

       I respectfully dissent from the court’s denial of rehearing en banc. I believe

the reinstatement of the panel decision in this case,1 (“Chandler II”) after remand

by the Supreme Court in light of Santa Fe Independent School District v. Doe, 120

S.Ct. 2266 (2000) (“Santa Fe”), is precluded by the Supreme Court’s

Establishment Clause precedent, especially Santa Fe, and warrants consideration

by the entire court.

       This case arose as a result of the fourth attempt by the Alabama legislature to

pass a law intended to facilitate “student prayer” in public classrooms and at school

events. See Chandler v. James, 958 F.Supp. 1550, 1553 (M.D. Ala. 1997) (citing

Ala.Code § 16-1-20.3(a)-(b) (1995)).2 The district court found this attempt

facially unconstitutional under the Establishment Clause. The district court then

issued a permanent injunction prohibiting the school district from permitting

student prayer “in situations which are not purely private, such as aloud in the

classroom, over the public address system, or as a part of the program at school-


       1
        The Supreme Court granted certiorari in Chandler v. James, 180 F.3d 1254 (11th Cir.
1999) (“Chandler I”), and on June 26, 2000, vacated and remanded this case for further
consideration in light of its decision in Santa Fe. The present opinion, Chandler v. Siegelman,
230 F.3d 1313 (11th Cir. 2000) (“Chandler II”), is this Court’s ruling following the Supreme
Court remand.
       2
         The Supreme Court found the prior attempts violative of the Establishment Clause. See
Jaffree v. Wallace, 466 U.S. 924 (1984); Jaffree v.Wallace, 472 U.S. 38 (1985).

                                                3
related assemblies and sporting events, or at a graduation ceremony.” Chandler I,

180 F.3d at 1257.

      Addressing a situation that is essentially indistinguishable, the Supreme

Court in Santa Fe concluded that a religious message broadcast over a public

address system controlled by the government and conducted on government

property at an official school-related event creates the objective perception of

religious endorsement in violation of the Establishment Clause and that a school

policy “permitting student-led, student-initiated prayer at football games violates

the Establishment Clause.” 120 S.Ct. at 2275-78 (internal quotations and citation

omitted). The opinion of this court reverses the injunction of the district court, and

in so doing, permits the very conduct prohibited by the Supreme Court in Santa Fe.

      The panel opinion suggests that this case, unlike Santa Fe, involves issues of

private religious speech only and thus the Establishment Clause is not implicated.

For support, Chandler II relies on Board of Education of Westside Community

Schools v. Mergens for the principle that there is a difference between government

speech endorsing religion, which is forbidden, and private speech endorsing

religion, which is protected. See Chandler II, 230 F.3d at 1316 (citing 496 U.S.

226, 250 (1990)). There is no debate about this basic principle. The question here

is whether in fact the conduct at issue constitutes public student prayer prohibited


                                          4
by the Establishment Clause or private prayer protected as free speech, and

Mergens is inapposite to that question.

      In Mergens, the Supreme Court held that Free Exercise and Free Speech

rights must be protected in the schoolhouse in the context of non-curricular

activities as specifically protected by the Equal Access Act. See 496 U.S. at 231

(citing 20 U.S.C. § 4071-4074 (1994) (providing that schools may not deny equal

access and use of their facilities for religious non-curricular activities). This case

does not present an equal access issue, and the injunction here specifically follows

Mergens by providing that religious speech during or relating to non-curricular

activities must be allowed by the school district. See Chandler v. James, 985

F.Supp.1062, 1063 (M.D. Ala. 1997) (“This PERMANENT INJUNCTION DOES

NOT affect the rights of secondary-school students to engage in religious activity

during noninstructional time that is consistent with the federal Equal Access Act,

20 U.S.C. Section 4071 et seq. . . .”) (emphasis in original).

      Chandler II also finds that the district court’s permanent injunction violated

free speech rights because it did not permit “students to speak religiously in any

sort of public context.” Chandler II, 230 F.3d at 1316. The district court, however,

took great pains to insure that students could express their religious views in

public. Specifically, the district court’s injunction reads:


                                            5
             This PERMANENT INJUNCTION DOES NOT

             [1] “proscribe the educational use of religious texts in the
             classroom to the extent that material so used is presented in an
              objective and academic manner . . .”
             [2] “proscribe students’ voluntary expression of their own
             religious beliefs in the form of homework, reports, artwork, or
             other school assignments . . .”
             [3] “proscribe the display of religious symbols, articles, and
             medals . . . and/or clothing bearing religious messages . . .”
             [4] “affect the rights of secondary-school students to engage in
             religious activity during noninstructional time that is consistent
             with the federal Equal Access Act . . .”
             [5] “prohibit students from distributing religious materials to
             classmates during noninstructional time . . .”
             [6] “proscribe a brief personal expression by a student which
             contains religious references during a commencement exercise
             or student address . . .”
             [7] “prohibit students from making announcements over the
             school public-address system regarding meetings of noncurricular
             religious clubs . . .”

Chandler v. James, 985 F.Supp. at 1063-64 (emphasis in original). Thus, the

permanent injunction permitted private prayer in public settings and prohibited

public prayer that could be perceived as state endorsed prayer, narrowly tailoring

its remedy to balance both Free Speech and Free Exercise rights as well as the

Establishment Clause concerns in this case.

      The panel decision in Chandler II, however, reasons that “if ‘[n]othing in the

Constitution . . . prohibits any public school student from voluntarily praying at

any time before, during, or after the school day,’ then it does not prohibit prayer


                                          6
aloud or in front of others, as in the case of an audience assembled for some other

purpose.” Chandler II, 230 F.3d at 1316-17 (quoting Santa Fe, 120 S.Ct. at 2281).

This analysis fails to take into account the difference between an individual or a

voluntary group of individuals praying privately, albeit in a public setting, on the

one hand, and allowing the public delivery of student prayer before “an audience

assembled for some other purpose,” which includes both students that wish to pray,

or pray in a particular manner, and those that do not. Id. The district court’s

injunction in this case carefully drew that distinction. The panel opinion, in my

judgment, erroneously erases it.

      Finally, Chandler II attempts to distinguish Santa Fe by suggesting that state

entanglement occurred in Santa Fe because the school district instituted a student

election process resulting in student prayer whereas no state entanglement occurred

here because no student elections were involved. See Chandler II, 230 F.3d at

1315. I believe this misreads the rationale of Santa Fe. The Santa Fe Court made

it clear that state entanglement involves “whether an objective observer” would

perceive the religious speech as a “state endorsement of prayer in the public

schools,” and that “[e]very government practice must be judged in its unique

circumstances,” keeping “in mind the myriad, subtle ways in which Establishment

Clause values can be eroded . . . .” 120 S.Ct. at 2278-82 (internal quotations and


                                          7
citations omitted). Using this criteria, Santa Fe concludes that the delivery of a

voluntary, student-initiated religious message “delivered to a large audience

assembled as part of a regularly scheduled, school-sponsored function conducted

on school property,” and “over the school’s public address system, which remains

subject to the control of school officials,” creates the “actual or perceived [state]

endorsement of the message” in violation of the Establishment Clause. Id. at 2278.

The conduct permitted in this case is no different.

      Moreover, consistent with prior Establishment Clause precedent, Santa Fe

directs courts to consider the effect of a government practice and to inquire

whether the practice will tend to impermissibly coerce religious participation. See

120 S.Ct. at 2275 (“‘[G]overnment may not coerce anyone to support or participate

in religion or its exercise, or otherwise act in a way which establishes a [state]

religion or religious faith, or tends to do so.’”) (quoting Lee v. Weisman, 505 U.S.

577, 587 (1992)). A critical aspect of that determination is the historical context of

the practice. See id. at 2278 (“The text and history of this policy, moreover,

reinforce our objective student’s perception that the prayer is, in actuality,

encouraged by the school.”). As was the case in Santa Fe, the record here reveals a

long-standing history of “unconstitutional efforts” to endorse and encourage

student participation in religion. Chandler I, 180 F.3d at 1265; See Chandler II,


                                           8
230 F.3d at 1317 n.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.”). The injunction vacated by the panel in Chandler II

was issued to prevent the enforcement of a facially unconstitutional statute enacted

by the Alabama legislature to protect and promote student-initiated “prayer,

invocation and/or benedictions” during “school-related student assemblies,”

“sporting events,” and “graduation or commencement ceremonies.”3 As the panel

opinion concedes, the record supports a history of coercive participation by the

school district in this case. Accordingly, Establishment Clause principles are

necessarily implicated. For all the foregoing reasons, I suggest that the reversal of

the district court’s injunction in this case contravenes the Establishment Clause and

warrants en banc review.




       3
          The relevant portion of the stricken statute reads: “(b) On public school, other public,
or other property, non-sectarian, non-proselytizing student-initiated voluntary prayer, invocation
and/or benedictions, shall be permitted during compulsory or non-compulsory school-related
student assemblies, school-related student sporting events, school-related graduation or
commencement ceremonies, and other school-related student events.” Ala.Code § 16-1-20.3(b)
(1995).

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