7th Cir: graduation ceremony in church not violate 1st Am.

The Seventh Circuit dismissed students’ claims that their high schools had violated the Establishment Clause by holding graduation ceremonies in a church. The court held that the graduation neither coerced participation in religion or conveyed a religious message.  The court had concluded that the claim was not moot, even though the school district claimed it would not hold future graduations in the church. Doe v. Elmbrook, No. 10-2922, 2011 WL 4014359 (7th Cir. Sept. 9, 2011). Judge Ripple, nominated by Ronald Reagan, wrote the opinion, joined by Judge Easterbrook, nominated by Ronald Reagan. Judge Flaum, nominated by Ronald Reagan, dissented in part.

The school district of Brookfield, Wisconsin and its surrounds (the “District”) has held graduations for its two high schools (East and Central) in the sanctuary of Elmbrook Church (the “Church”) for many of the last ten years. The Church has crosses on the walls of its main sanctuary as well as bibles and donation envelopes in the pews. According to the Seventh Circuit, “the atmosphere of the Church, both inside and outside, is indisputably and strongly Christian.”

The District first rented the space in the Church in 2000 when student class officers complained of cramped conditions in their school’s gym. The students proposed moving graduations from the gym to the Church, and the school officials approved. For five years, each senior class voted to hold the graduation in the Church. Between 2005 and 2009 the District decided without a student vote to hold graduation in the Church. In 2010, the District completed a new field house and both high schools moved their graduation to the new field house.

Parents and students complained about the District’s choice to use the Church for graduations as soon as the practice began. Parents criticized the choice of the Church as well as the apparent conflict of interest for Superintendent Gibson because he was also a member of the Church. In 2009, a group of students and former students filed a lawsuit, claiming the District had violated the Establishment Clause and seeking to enjoin the practice of using the Church for future graduations. The District Court granted summary judgment to the District and dismissed the claim. The students appealed to the Seventh Circuit.

Though the District had not argued the case was moot, the court explained that it was nonetheless obliged to consider whether there was still a justiciable case or controversy. The District stated it had no intention of using the Church again. Nevertheless, the court explained that the plaintiffs’ claim only becomes moot if there is a level of certainty that the defendants would not recommence their complained-of behavior. Here, although the District claimed it did not intend to begin using the Church again, it could not meet its “heavy burden” of showing that it would probably not decide to use the Church in the future. Thus, the plaintiffs’ claims for an injunction to bar the District from using the church were not moot.

The court next accepted the district court’s decision to allow the plaintiffs to remain anonymous. Though anonymity is disfavored, the circuit court found the district court had not abused its discretion. The record contained evidence that plaintiffs had suffered retribution in the past and feared further harm if their involvement in the litigation became public. The district court, the circuit court held, was within its discretion to decide that protecting the privacy of the plaintiffs permitted allowing them to remain anonymous in this litigation.

Turning to the merits, the Seventh Circuit first addressed the plaintiffs’ claim that holding graduation in the Church amounted to government coercion of participation in religion. See Lee v. Weisman, 505 U.S. 577 (1992). The court acknowledged that “symbols can be used to proselytize,” but “the Establishment Clause does not shield citizens from encountering the beliefs or symbols of any faith to which they do not subscribe.” The court described the graduation ceremony as an “encounter with religion” that was “purely passive and incidental to attendance at an entirely secular ceremony.” The court found nothing in the record to indicate that the plaintiffs actually felt coerced.

The court next addressed the plaintiffs’ claim that the graduation ceremony conveyed a message that the District endorsed the Church. See Lemon v. U.S. 602 (1971). The court rejected the theory that any graduation ceremony held in a place of worship must convey a message of endorsement, and instead insisted that a “fact-specific” inquiry is necessary. Here the court accepted that attendees at graduation would see the crosses, bibles, and other religious symbols in the church. However, the court found that “an objective observer” would understand that the religious symbols were simply part of the rented space and that the ceremony itself was entirely secular. Furthermore, the record contained evidence that many attendees actually knew that that the religious symbols were simply part of the “underlying setting” and not part of the graduation ceremony.

Finally, the court examined whether the graduation ceremony excessively entangled the state with religion. The court found no evidence in the record that the Church tried to use the graduation ceremony to promote its message, or that the District tried to use the ceremony to promote the Church. The District merely rented space from the Church, and the relationship between the two was “too de minimus to cause any real concern.” Concluding that there was no evidence of a violation of the Establishment Clause, the Seventh Circuit affirmed the District Court’s grant of summary judgment to the School District.

Judge Flaum’s partial dissent disputed the majority’s conclusion that there was no violation of the Establishment Clause. Judge Flaum analogized to Stone v. Graham, 449 U.S. 39 (1980), in which the Supreme Court struck down a state law requiring the Ten Commandments to be posted in classrooms. The religious icons there created pressure on students to adopt the ideology represented by those icons. Here, the graduation ceremony “put a spiritual capstone on an otherwise secular education,” and the 15 to 20 foot cross at the front of the Church’s sanctuary undoubtedly conveyed a powerful expressive message. The church lobby also contained pamphlets aimed at promoting Christianity among students, and “during at least one graduation ceremony, church members passed out religious literature directly to audience members.” The graduation ceremony, Judge Flaum argued, was pervaded by a religious message that violated principles at the heart of the Establishment Clause.

Nate Vogel, University of Pennsylvania Law School, class of 2011


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