FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT OCT 19, 2000 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

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.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 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’ petiti on 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.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 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, th e cases are complementary rather than inconsistent. 2
In Santa Fe , the Supreme Court reaffirmed th at the Establishment Clause of the First Amendment prohibits a school district from taking affirmative steps to create a vehicle for prayer to be deliveredat a school function. 120 S.Ct. at 2279. This principle has been establishe d 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 hol ding. 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 in stituted its policy by establishing a two-4 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 sp eak 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 neutralitytoward 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 th e student election process. Santa Fe thought it could satisfy the constitutiona l 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 pro cess implemented by the District guarantees, by definition, that minor ity candidates will never prevail and that their views will be effectively silenced.5 Id. at 2276. Such a policy, the Court c oncluded, 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 pl ainly 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 imprin t of the State, they cannot be characterized as “privat e” speech protected by the Fr ee 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, a ttributable to the school, it constitutes an unconstitutional endorsement of religion by the State.
II.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 Although the policy at issue in Santa Feinvolved 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 c ontrary, 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 priv ate 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 considered4 For example, the Permanent Injunction permits students to “quietly engage in religious activity during non-instructional times, so l ong as it does not unduly call attention thereto.” Chandler I , 180 F.3d at 1260 n.10. 7 private , and, therefore, protect ed. This is the answerChandler 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 thata student must be allowed to pray silently while in school, or even discuss his religious beliefs quietlywith 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 ove rbroad to the extent that it equated all student religious speech in any public c ontext at school with State speech. In so doing, it eliminated any possibility of privatestudent religious speech under any circumstances other than silently or be hind 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 not8 private speech endorsing religion, but th e 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 audi ence 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 po licy 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. On ly 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 injuncti on entered by the district court in this5 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 insp ect 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 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, orderi ng, 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 prohib it 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. 510 Accordingly, we reaffirm our opinion and reinstate our judgment in Chandler I . The case is REMANDED to the dist rict court for further proceedings not inconsistent with this opinion.