For nearly a decade, the Elmbrook School District, located just outside of Milwuakee, Wisconsin, held their high school graduation in the auditorium of Elmbrook Church. The church’s auditorium was air-conditioned, handicapped accessible, plenty of parking and seating, as well as jumbo screens on which to view ceremonies. The church bills itself as a nondenominational Christian church.
Beginning in 2001, various entities, including non-Christian parents, complained about having graduation ceremonies at the church, saying that the overt displays of Christian faith, as well as manned information tables about the church and its activities violated the rights of non-Christians and the nonreligious. In 2009, a group of students and their parents filed suit to stop the graduation from occurring at the church.
While the graduation was not stopped, the lawsuit continued. The students claimed they were forced to choose between not attending their graduation or to be in an environment in which they felt uncomfortable. They said that the religious displays, that included crosses and bibles, made them feel unwelcomed and angry. Some of the plaintiffs, a mixture of current and former students, said that their younger children were considering not attending their own future graduation because of the location. The ceremony did not include any religious activities such as prayer.
A federal district judge, and later a three judge panel, ruled in favor of the school district. On appeal to the full Seventh Circuit Court of Appeals, the court reversed the previous decision, declaring that the school had violated the Establishment Clause of the First Amendment. In their decision, they noted that the sheer religiosity of the space, which included the students passing through a lobby that contained pamphlets for middle school and high school ministries, as well as a 20-foot tall Latin cross, created a likelihood that the high school students and their younger siblings would perceive a link between the church and the state (aka the school). The dominant iconography presented a powerful message of a favored religion, creating an unwelcoming environment for nonadherents attending the ceremony.
In addition to the unconstitutional endorsement of a particular religion, the appeals court found that there was also an element of coercion. By forcing the students to attend a graduation ceremony in a pervasively Christian environment, they have created the potential for coercion. Students of differing faiths or the nonreligious could feel subtle pressure to participate or otherwise honor the space, such as meditating on the religious symbols, as their Christian classmates.
The school district appealed to the Supreme Court. After the Court’s recent ruling allowing prayer at legislative meanings, many felt that Elmbrook School District v Doe could solidify the Court’s position on how to address the various tests on government practices violating the Establishment Clause. In a surprise move, however, the Court refused to hear the case and the Seventh District’s ruling stands.
Normally, the Supreme Court’s refusal to hear cases garners little attention. There is some speculation that unlike in the Town of Greece v Galloway, in which the majority ruled that the long established history of legislative prayer did not amount to coercion of the adults attending council meetings, the Elmbrook case involved minors and may have been satisfied with the Seventh Circuit’s analysis regarding coercion. However, in an unusual move, the Court’s two most conservative justices wrote a seven page dissent disagreeing with the decision to not hear the case, giving insight to a deeper divide.
Justices Scalia and Thomas, who reportedly lobbied forcefully for the case to be heard, wrote that the Seventh Circuit’s case was fundamentally flawed, especially considering the Court’s recent ruling in Town of Greece. Written by Justice Scalia, he noted that the lower court’s analysis failed the endorsement test (a test that recent SCOTUS decisions have seemed to ignore, relying more strongly on the harder to prove coercion test). He also writes that it was irrelevant that students and minors felt uncomfortable in the space and disagreed they were forced to attend or otherwise participate in religious activities. Besides, he said, the First Amendment explicitly favors religion.
The justices respectfully dissented from the denial of certiorari.
We will never know how the Court would have ruled, though it is clear that it would have been a fight for reversal of the Seventh Circuit’s decision, at least by the conservative wing. For now, Elmbrook School District now has a newly renovated high school gymnasium for its graduation ceremonies. They also face a hefty bill for the plaintiffs’ attorney’s fees now that they’ve lost the case.
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