Petition for Writ of Certiorari — Chandler v. Siegelman

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eT oe i

U Supreme Court, U.S.

FILED

001 606 APR 2:0 2001

No.

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL CHANDLER, invididually and as

father and next friend of JESSE CHANDLER,

Petitioners,

DON SIEGELMAN, in his official capacity as

Governor of the State of Alabama and as

President of the State Board of Education, et al.,

Respondents.

“ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

PAMELA L. SUMNERS ELIZABETH J. HUBERTZ

(Counsel of Record) Robinson, Curley

ACLU of Illinois & Clayton, P.C.

180 N. Michigan Avenue 300 South Wacker Drive

Suite 2300 Suite 1700

Chicago, Illinois 60601 Chicago, Illinois 60606

(312) 201-9740 (312) 663-3100

[ Additional Counsel Listed Inside Front Cover]

Waghington,0.C. ¢ THIEL PRESS © (202) 328-3286

STEVEN K. GREEN STEPHEN L. PEVAR

Americans United for ACLU Foundation

Separation of 32 Grand Street

Church and State Hartford, Connecticut 06106

518 C Street, N.E.

Washington, D.C. 20002

(202) 466-3234

— Counsel for Petitioners —

QUESTIONS PRESENTED FOR REVIEW

1. Following remand of this case for consideration

of this Court’s decision in Santa Fe Independent School

District v. Doe, 530 U.S. 290 (2000), did the Eleventh

Circuit disregard this Court’s holding when it reinstated its

1999 opinion permitting prayers by students and nonschool

persons over the public address system at football games,

compulsory school assemblies, and graduation ceremonies

and over the classroom intercom?

2. Absent any evidence that the state has created a

public forum in its schools, does- it violate the

Establishment Clause for school officials to permit both

students and nonschool persons to offer group prayer

before a captive audience of K-12 students in classrooms,

school-sponsored assemblies, sporting events and

graduation exercises using the machinery of the state,

including compulsory attendance laws, public address and

intercom systems?

LIST OF ALL PARTIES TO THE PROCEEDING

3 Michael’ Chandler and Jesse Chandler, a minor

child, by and through his father and next friend, Michael

Chandler, Petitioners/Plaintiffs.

Don Siegelman, present Governor of Alabama, in

the Governor's official capacity as president of the

Alabama State Board of Education; Forrest H. "Fob"

James, Jr., former Governor of the State of Alabama;

William H. Pryor, Attorney General of the State of

Alabama; Alabama State Board of Education; Dr. Ed

Richardson, in his official capacity as Superintendent of

the State Board of Education; Dr. Stephanie Bell, in her

official capacity as a member of the State Board of

Education; David Byers, in his official capacity as a

member of the State Board of Education; Bradley Byrne,

in his official capacity as a member of the State Board of

Education; Mary Jane Caylor, in her official capacity as a

member of the State Board of Education; Dr. Ethel Hall,

in her official capacity as a member of the Alabama State

Board of Education; G.J. "Dutch" Higginbotham, in his

official capacity as a member of the Alabama State Board

of Education; Sandra Ray, in her official capacity as a

member of the State Board of Education; Mary Etta

Bailey, in her official capacity as a member of the DeKalb

County Board of Education; Dot D. Burke, in her official

capacity as a member of the DeKalb County Board of

Education; Greg Buttram, in his official capacity as a

member of the DeKalb County Board of Education;

Willard A. Israel, former member of the DeKalb County

Board of Education; Tommie Johnson, in his official

capacity as a member of the DeKalb County Board of

Education; Richard R. Land, in his official capacity as

Superintendent of the DeKalb County Board of Education;

Weldon Parrish, former Superintendent of the DeKalb

County Board of Education; Jimmy Wilbanks, in his

official capacity as a member of the DeKalb County Board

of Education; Johnny Young, in his official capacity as a

member of the DeKalb County Board of Education.

TABLE OF CONTENTS

Coen PEED sh g't-e oop ca oe sabandeneds 1

Re au eae al ode we aes il

Se I ss on hn sk os Oe ee eee IV

PAE OF Pb xc eawec ce csnwnduncnowen Vi

CITATION OF OPINIONS AND ORDERS ............. l

SOARS Pare TN o.o.n hak ccna bddobicecams ]

CONSTITUTIONAL PROVISIONS

pe |, Sea er yee eee pense Contras PaaS Sarre 2

Br ACE OO CHG bk ko enoee cad sanees van 2

REASONS FOR GRANTING THE WRIT ............-.. 9

I. THE ELEVENTH CIRCUIT’S DECISION

DIRECTLY CONTRADICTS THIS

COURT’S DECISION in SANTA FE ....... 9

A. The Eleventh Circuit Ignored

Santa Fe’s Teaching about

Private v. State-Sponsored

Prayer, Focusing Instead on

the Identity of the Speaker .......... 10

B. Santa Fe Rejected the

Eleventh Circuit’s Viewpoint

Newtranty TRGOEY.. 6 cece c een seces 15

II. EVEN IF SANTA FE HAD NEVER

BEEN DECIDED, THIS COURT’S

LONG-STANDING PRECEDENTS

COMMAND REVERSAL ............... 16

Ill. BECAUSE THE ELEVENTH CIRCUIT

HAS MISAPPLIED THIS COURT’S

PRECEDENTS, THE CIRCUITS

DEERME 6698 cs Ake 19

COTIIOE on 5 525.659 555 ee 22

TABLE OF AUTHORITIES

Cases Pages

Abington Twp. Sch. Dist. v. Schempp,

Ce ee er ree 14. 16,17

ACLU v. Blackhorse Pike Reg. Bd. of Educ.,

84 F.3d 1471 (3d Cir. 1996)(en banc) ... 20,21

Berger v. Renssalaer Cent. Sch. Corp., 982 F.2d 1160

(7" Cir.), cert. denied, 508 U.S. 911

Ee Ly eer pyar weep Me na 21

Collins v. Chandler Unified Sch. Dist.,

644 F.2d 759 (9" Cir. 1981)............ 19, 21

Cole v. Oroville Union High School, 228 F.3d i092

CRG, BEN kk deo cae ees 20

County of Allegheny v. ACLU, 492 U.S. 573

i, SP OP ee ree FoR OL a 28

Edwards v. Aguillard, 482 U.S. 578 (1987) ........ 17

Engel v. Vitale, 370 U.S. 421 (1962) ............. 16

Joint Sch. Dist. 241 v. Harris, 515 U.S. 1154

(SWE so nad te ndacusdes eee 3, 22

Lee v. Weisman, 505 U.S. 577 (1992) ......... passim

Board of Educ. of Westside Community Schs.

v. Mergens, 496 U.S. 226 (1990) ....... 11, 15, 16, 21

People ex rel. McCollum v. Board of Educ.,

Fae ta See - o cedvetcessabees 17

Santa Fe Indep. Sch. Dist. v. Doe,

FOG is BO OE 6 n-ne be a8eceueen passim

Stein v. Oshinsky, 348 F.2d 999 (2d Cir.),

cert. denied, 382 U.S. 957 (1965) .......... 20

United States v. Munsingwear, Inc., 340 U.S. 36

4, PPPS rer eres ey er rer 3, 22

Wallace v. Jaffree, 472 U.S. 38 (1985) ......... 16, 22

Constitutional and Statutory Authorities

UD. Ceeek., FE: Bc cwkcecays benbadsaaes passim

UD. Commt., AME. U6 Ssceveusescneeten passim

28 U.S.C. § 1254(1) ..... MWe

CITATIONS OF OPINIONS AND ORDERS

The order of the United States Circuit Court

of Appeals for the Eleventh Circuit denying the petition for

rehearing is reprinted as Appendix I to the petition. The

opinion of the Eleventh Circuit reinstating its earlier

opinion is reported at 230 F.3d 1313 (11" Cir. 2000) and

is reprinted as Appendix A. Its earlier opinion is reported

at 180 F.3d 1254 (11" Cir. 1999) and is reprinted as

Appendix B. The opinion of this Court vacating the earlier

opinion and remanding is reprinted as Appendix C. The

opinion of the district court granting in part and denying in

part the motion for partial stay of the injunction is reported

at 998 F. Supp. 1255 (M.D. Ala. 1997) and is reprinted as

Appendix D. The opinion of the district court regarding the

constitutionality of Alabama’s school-prayer statute is

reported at 958 F. Supp. 1550 (M.D. Ala. 1997) and is

reprinted as Appendix E. The district court’s permanent

injunction is reported at 985 F. Supp. 1062 (M.D. Ala.

1997) and is reprinted as Appendix F. The opinions of the

district court relating to the issuance of the injunction are

reported at 985 F. Supp. 1068 (M.D. Ala. 1997) and 985

F. Supp. 1094 (M.D. Ala. 1997) and are reprinted as

Appendix G and Appendix H.

BASIS FOR JURISDICTION

The court of appeals entered its judgment on

October 19, 2000. The petition for rehearing en banc was

denied on April 13, 2001. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS and

STATUTES

The First Amendment to the United States

_ Constitution provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble and to petition the Government for a redress of

grievances.”

Section | of the Fourteenth Amendment to the

United States Constitution provides: “All persons born or

naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of

the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty or property,

without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.”

The full text of Alabama Code § 16-1-20.3 (1975 &

1993 Supp.) is set forth in Appendix J.

STATEMENT OF THE CASE

In 1993, Alabama enacted its fourth school-prayer

statute within a 15-year period. The operative portion of

the statute provides:

On public school, other public, or

other property, non-sectarian, non-

proselytizing student-initiated

voluntary prayer, invocations 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) (1975 & 1993 Supp.).

On February 1, 1996, Michael Chandler and his son

Jesse sued, challenging the constitutionality of the statute

both facially and as applied in DeKalb County, Alabama

where the family has lived and worked and where Jesse

attends one of eight K-12 schools. He is now a senior and

is expected to graduate on May 23, 2001.'

The trial court concluded, in findings not challenged

on appeal, that the following religious activities had taken

piace in DeKalb County schools. DeKalb admitted that

these activities were applications of the school-prayer

statute.

*Christian prayers over the loudspeaker at high

school football games offered by students or clergy.

For several years prior to suit, Christian prayers were

recited by students or clergy over the loudspeaker at

DeKalb County football games. DeKalb County stipulated

to control over access to the public-address system at home

football games. There is no evidence that DeKalb County

' To the extent that mootness may be a concern at a later date, the

petitioners ask the Court to follow United States v. Munsingwear,

Inc., 340 U.S. 36 (1950), and vacate the affected portions of the

lower courts’ decisions. See also Joint Sch. Dist. 241 v. Harris, 515

U.S. 1154 (1995) (vacating as moot lower court ruling).

ever set aside use of the system for student expression or

otherwise established a public forum for the discussion of

other topics or viewpoints. Nor is there evidence that

prayers from non-Christian religious traditions were

offered or that any other type of speech, other than

announcements related to the games, was broadcast. In

fact, the superintendent stated the prayers were a

“tradition” that would continue despite court rulings to the ~

contrary. He also stated that DeKalb’s official policy was

“to allow religion in the schools whenever possible.”

Specimen prayers before and after suit were

videotaped and entered into evidence. While attendance at

football games is not a curricular requirement, most

students attend, including students not yet in high school

and students who have graduated. Jesse Chandler has

attended such football games. In fact, many members of

the community attend, including recently graduated

students. See App. D27-29.

*Christian prayers in the classrooms as part of

orchestrated student activity. In a number of cases in

DeKalb County, students led their peers in corporate

prayers or religious devotionals in the classroom or over

the intercom during the school day. For example, the

teacher would select a student to lead the prayer, or the

teacher would give a signal and the students would pray in

unison. In Jesse Chandler’s homeroom, his teacher selected

students to offer prayers or Bible readings and did so

herself in the absence of student “volunteers.” Students

also prayed over the school-intercom system during

homeroom. There is no evidence that school officials made

the school intercoms available for other speech unrelated

to school business or allowed school clubs to conduct club

activities over the intercom system. _

*Christian prayers at compulsory school

assemblies. During the school day, DeKalb County public

schools hold assemblies where attendance is required or

where students must choose between attendance or study

hall. School officials control the assemblies and decide the

content of the programs. At these assemblies, students or

clergy have led prayers and religious—devotionals. For

example, assemblies for programs such as D.A.R.E. have

featured prayer. Although this drug-awareness program is

not compulsory, all fifth-graders, including Jesse Chandler,

participated. Both before and after suit, Jesse Chandler

attended assemblies where prayers or devotionals were

offered.

‘Christian prayers at high-school graduation

ceremonies. For several years prior to suit, graduation

prayers, identified as “invocations” or “benedictions,”

were led by students or clergy. They were listed on

preprinted programs separately from valedictory or

salutatory addresses, which were présented independently.

As stipulated, school officials plan the ceremonies and

control the form and content of the graduation programs.

There have been no prayers from non-Christian religious

traditions, and no speech besides prayer has ever been

offered during the prayer segments. Several prayers were

videotaped and entered into evidence, and each invokes the

name of Jesus. After the suit was filed, the word

“invocation” was dropped from the preprinted program at

Sylvania School and the words “Class Historian” inserted.

For three years in a row, the class historian led the

ia i

audience in prayer, just as had taken place during the

“invocation” prior to suit. In addition to Sylvania, other

schools continued to permit prayer after suit was filed.

‘Other Christian religious activities in the

DeKalb County schools. In addition to the above

activities conducted pursuant to the statute, DeKalb County

officials permitted ministers and evangelists to speak at

school events such as mandatory drug- or AIDS-awareness

assemblies and to pray, proselytize, make extended

religious remarks, and invite students to church functions.

School officials also allowed nonschool persons to enter

classrooms to make presentations and distribute Gideon

Bibles. :

Although school officials promised to intercede to

stop religious harassment of students, they did not do so.

The trial court found that DeKalb County had permitted

classmates’ harassment of Jesse Chandler for a period of

months. Between October 1996 and April 1997,

approximately 175 of 200 students stood and prayed aloud

when Jesse entered the lunchroom, on a signal of “One,

two, three, pray.” Despite complaints from the Chandler

family, both the school principal and the superintendent

refused to stop the conduct. Jesse was forced to take his

lunch alone in a classroom.

On October 23, 1997, DeKalb filed a pleading

Stating that it wanted clarification on the question of

whether “a federal judge has the authority to tell school

officials and administrators in DeKalb County how to

handle the issue of school prayer” and “if a federal judge :

can do whatever he wants whenever he wants to.” (App.

E12.) On October 29, 1997, the trial court enjoined

DeKalb from “permitting” “school-sponsored or officially

sanctioned” prayers. 985 F. Supp. 1062, 1063-65. The

word “permitting” tracks the "shall permit" language of the

statute that DeKalb contended it applied in sponsoring

such prayers.

The district court repeatedly stressed that its

injunction reached only “school-organized” or “officially

sanctioned” prayer -- that is, prayer occurring in situations

where school officials actively control the setting and

students cannot realistically express opposing views or

offer other unsanctioned speech. The injunction explicitly

protected students’ rights under the federal Equal Access

Act (for grades 7-12). (App. F4-F5, F9.) It also allowed

students to distribute religious literature to the same extent

that they could distribute other literature, to express

religious beliefs in school assignments, to wear religious

clothing and jewelry, to attempt to persuade their peers on

religious issues, and to quietly engage in religious activity

during noninstructional time. (/d.)

The defendants’ appealed only those provisions of

the injunction prohibiting school officials from

“permitting” students’ and nonschool persons’ religious

exercises at “school-sponsored” or “officially sanctioned”

activities. The defendants did not challenge a single

factual finding on appeal.

The first Eleventh Circuit decision was issued on

July 13, 1999. It vacated the injunction, holding that there

? Alabama Governor Forrest H. “Fob” James, Jr. raised only one

issue on appeal, arguing that the Bill of Rights does not apply to the

state of Alabama.

is no state action when a student or a nonschool “other”

prays as part of a school-controlled event. It further held

that if school officials fail to permit prayers by students

and nonschool “others” during school-sponsored events the

officials control, the officials evince unconstitutional

hostility toward religion and practice “viewpoint

discrimination.” Although the panel found fault with only

pieces of the injunction — specifically, the trial court’s use

of the word “permit” with regard to the speech of students

and nonschool others — it vacated the entire injunction. In

addition, the opinion was filled with language complaining

about efforts to “cleanse” religion from the public schools.

(See, e.g., App. B15 (“**Cleansing’ our public schools of all

religious expression, however, inevitably results in the

‘establishment’ of disbelief — atheism — as the State’s

religion.”’).)

After their petition for rehearing en banc was

denied, the Chandlers petitioned this Court for certiorari.

This Court granted the writ, vacated the Eleventh Circuit’s

opinion, and remanded for further findings not inconsistent

with Santa Fe Independent School District v. Doe, 530

U.S. 290 (2000). On October 19, 2000, the Eleventh

Circuit reinstated its earlier, pre-Santa Fe opinion, which

held that prayers and devotional activity, aibeit delivered

* The Eleventh Circuit explained that its use of the word “student”

throughout the opinion should be understood to include all

nongovernmental “private parties.” (App. B6 at n.6.) It held that

“students or other private parties” have a First Amendment right to

pray at school-related events. (App. B22. See also App. B25.) In

DeKalb County, the nongovernmental private parties offering prayers

were Christian ministers and evangelists. (See App. G27, G43, G60.)

to captive student audiences using school loudspeakers at

school events or in the classroom, were “private” speech

and that enjoining this speech amounted to “viewpoint

discrimination.”

The Chandlers again petitioned for rehearing en

banc. The en banc petition was denied April 13, 2001.

This petition for certiorari, the Chandlers’ second, timely

follows.

REASONS FOR GRANTING THE WRIT

First, this petition places in issue this Court's

province to pronounce the law of the land — on a matter

of the most profound importance: the establishment of

religion. This Court’s Santa Fe decision repudiated each

and every rationale upon which the Eleventh Circuit's

Chandler I decision rested. Despite Santa Fe’s clear

teaching, the Eleventh Circuit reinstated its earlier opinion

as if Santa Fe had never been decided. Second, even if

Santa Fe had never been decided, this Court has never

allowed--and other Circuits do not allow--the machinery of

the state to be used to sponsor religion, especially in the

public schools. The Eleventh’s Circuit decision is

revolutionary among the Circuits and irreconcilable with

this Court’s precedents.

The Eleventh Circuit’s Decision Directly

Contradicts this Court’s Decision in Santa Fe

Last Term, in Santa Fe, this Court struck a school-

board “policy that permits, but does not require, prayer

initiated and led by a student,” struck it on its face, and

struck it even when it purportedly created a species of

“equal access” for secular speech. 530 U.S. at 294.

This Court in Santa Fe did not obscure the reasons

for its holding: The “student-initiated” prayers were

"delivered to a large audience assembled as part of a

regularly scheduled, school-sponsored function conducted

on school property. The message [was] broadcast over the

school's public-address system, which remains subject to

the control of school officials.” /d. at 307. This Court

pointedly noted that "[i]t is in a setting such as this that

'[t]he board has chosen to permit’ prayer." /d.

Despite this Court’s clear teaching on coercion,

endorsement, and the school environment, the Eleventh

Circuit on remand held that school officials must permit

prayers initiated by students and nonschool persons over

the public-address system at football games, compulsory

school assemblies, at graduation ceremonies--even in

classrooms. No decision could be more antithetical to

Sante Fe than the Eleventh Circuit’s.

A. The Eleventh Circuit Ignored Santa Fe’s

Teaching about Private v. State-Sponsored

Prayer, Focusing Instead on the Identity of the

Speaker. |

The school-sponsored context, and not the speaker's

identity, dictated this Court’s finding of an Establishment

Clause violation in Santa Fe. Prayers “at government-

sponsored, school-related events,” id. at 301, involve “both

perceived and actual endorsement of religion.” /d. at 305.

They bear "the imprint of the State and thus put school-age

children who object[] in an untenable position." /d.

"“

(quoting Lee v. Weisman, 505 U.S. 577, 590 (1992)).

Prayer in this setting, Santa Fe teaches, cannot “be

regarded as ‘private speech." Jd. at 302.

Yet the Eleventh Circuit explicitly found such

speech in such a setting to be “private,” as long as it is not

uttered by a school official.‘

In Santa Fe this Court rejected the very argument

that prayers in this setting are "private" speech merely if

uttered by students,’ and explicitly found that a private-

speech rationale does not apply to, e.g., prayer over the

school's p.a. system. Compare 530 U.S. at 302, 309-10

(noting distinction between government speech endorsing

religion and private speech doing the same, but stating that

prayers over the p.a. system are not private speech) with

180 F.3d at 1258, 1264 (using Mergens ° to support finding

* No one — including the Chandlers and the trial court — has ever

contested the right of students to engage in fruly private prayers, i.e.,

praying before a test or saying a private grace before meals in the

lunchroom. The injunction forbids (and the Eleventh Circuit

directed) school officials to permit the praying of audible, corporate

prayers that become part of the school-sponsored event at issue.

(Compare App. B21-B22 with App. F4-F7.) The type of prayers

reached by the injunction would include a student or member of the

clergy using the school microphone and saying to a captive audience,

“Let us pray,” but not a group of students praying among themselves

in the stands when all are free to move around. (See App. E23-26;

App. D69-D71, D87-91.)

* Chandler also allows persons other than students to pray before a

large school-assembled audience using school facilities and

equipment over which school officials have plenary control. 180

F.3d at 1257 n.6, 1264.

° Board of Educ. of Westside Community Schools v. Mergens,

496 U.S. 226 (1990).

that such prayers are “private” speech). The Eleventh’s

Circuit’s reinstatement following remand is flatly defiant

of this central aspect of Santa Fe.

Simply put, this Court held that permitting a student

to pray did not "turn public speech into private speech,"

and did not "insulate the school from the coercive element

of the final message." Jd. at 2279. Permitting a student to

say the prayer over the school microphone, at a school

event, before a school-organized audience, is not a “circuit

breaker” insulating the school from endorsement any more

than the deployment of a student insulates the school from:

the coercive element of the message. Compare id. at 305,

309-10 with 180 F.3d at 60-63 & n.15. The Eleventh

Circuit treats the fact that a person who is not employed by

the school board is the person praying over the intercom as

a constitutional cloaking device.’ But this Court sees past

’ The Eleventh Circuit's justification for its notion that student-

composed prayers at school-controlled events are “private” involves

its correlative assumption about “genuine” (meaning unscripted)

prayers. The prayers if unscripted are “genuine” and if genuine are

unscripted, and thus “private,” so that to proscribe them is to engage

in crass censorship. See App A8. This holding, the panel states, is

"complementary rather than inconsistent" with Santa Fe. App. A3.

In fact, the Eleventh Circuit disregards the fact that the actual,

impermissible prayers at issue in Santa Fe were themselves

"genuine": "the particular words used by the speaker are not

determined" by anyone but the speaker. 530 U.S. at 305-06. The

unscripted nature of the prayers did not save the prayers in Santa Fe,

however. School control and school context, not the existence of a

school-authored script, are what make the Establishment Clause

violation, and the Eleventh Circuit is simply mistaken in its

insistence that curtailing the violation amounts to censorship:

"*Regardless of whether the prayers are spontaneously initiated at

formalism and artifice — Lee, 505 U.S. at 595--and has

explicitly warned the lower federal courts not to “accept

what is [an] obviously untrue” rationalization for

unconstitutional action or to “turn a blind eye” to context

and “social facts.” Jd. at 315. The social fact of a coercive

school setting, and a school-owned microphone, cannot be

ignored consistent with this Court’s Establishment Clause

jurisprudence. In Santa Fe, this Court found the pressure

to conform religiously, in the school context, as

unconstitutional as any more direct means the state might

employ. /d. at 311-12 (quoting Lee, 505 U.S. at 593). The

simple meaning of this statement is that students, just like

school officials, are proscribed from using the machinery

of the state to allow students to promote religion from

them. The Court of Appeals operated on just the opposite

assumption. Compare id. with 180 F.3d at 1260, 1263.

The Eleventh Circuit commands school officials to

permit the very type of religious activity that this Court has

these Yaschool-sponsored events, school officials are present and

have the authority to stop the prayer.’" Jd. at 300 (emphasis added).