   Michael CHANDLER, individually and as next friend of his son, Jesse Chandler, et al., Plaintiffs-
Appellees,

                                                      v.
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.

                                          Nos. 97-6898, 97-6953.

                                      United States Court of Appeals,
                                              Eleventh Circuit.
                                               April 13, 2001.

Appeals from the United States District Court for the Middle District of Alabama (No. 96-00169-CV-D-N),
Ira De Ment, Judge.

ON PETITION FOR REHEARING EN BANC
(Opinion October 19, 2000, 11th Cir., 230 F.3d 1313)

Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH, DUBINA, BLACK, CARNES,
BARKETT, HULL, MARCUS and WILSON, Circuit Judges.

        ORDER:
        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.
        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, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (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.




    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.
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-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, 110 S.Ct. 2356, 110 L.Ed.2d 191

(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 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, 110 S.Ct. 2356 (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


    2
     The Supreme Court found the prior attempts violative of the Establishment Clause. See Wallace v.
Jaffree, 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984); Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct.
2479, 86 L.Ed.2d 29 (1985).
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:

        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 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 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, 112 S.Ct. 2649, 120 L.Ed.2d 467

(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, 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).
