[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).
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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:
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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
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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,
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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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