DOE v. ELMBROOK SCHOOL DISTRICT (September 9, 2011)

Prior to 2000, Brookfield Central and Brookfield East High Schools in Brookfield, Wisconsin held their graduation ceremonies in their gymnasiums. The venues were generally considered quite uncomfortable -- hot, cramped, uncomfortable seating. Central's senior class officers for the Class of 2000 recommended to the school and District that the ceremony be moved to the Elmbrook Church, a local non-denominational Christian institution. The school adopted the recommendation and held its graduation ceremony at the Church from 2000 until 2010, when it moved the ceremony to its newly-constructed district fieldhouse. Brookfield East traveled a similar path and held its graduation ceremony at the Church from 2002 until 2010. Both the inside and the outside of the Church reflect its Christian heritage. There are crosses and other religious symbols outside the church. The lobby, through which all visitors must pass, contains religious banners and symbols as well as tables with religious literature. A large cross hangs in the sanctuary, where the ceremony takes place. Bibles and hymnals can be found in all the pews. Several parents objected to the ceremonies' venue. A group of current and former students and their parents brought suit against the District alleging that the practice violated the First Amendment. Chief Judge Clevert (E.D. Wis.) granted summary judgment to the District. Plaintiffs appeal.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Flaum (dissenting in part), and Ripple affirmed. The Court first addressed justiciability, given the renovation of both gymnasiums and the construction of a new fieldhouse. All 2010 ceremonies were held in those facilities and the District has no present intention to use the Church again. But the Supreme Court has said that a defendant's voluntary decision to stop allegedly wrongful conduct does not make a case moot unless the party seeking mootness meets a heavy burden of proving that the behavior cannot be expected to recur. The District did not meet that burden. Although the District does not currently intend to use the Church again, it has not officially ruled it out. Next, the Court addressed the fact that the plaintiffs were proceeding anonymously, as Does. Although anonymous litigation is disfavored and the Court was mildly critical of the district court's failure to explain his reasoning in granting the motion, the Court nevertheless found no abuse of discretion. Nothing in the record suggests that the district court did not carefully consider the question and apply the proper legal standard and the basis for the ruling is fairly apparent from the eight sworn declarations presented by the plaintiffs. Given the intensely emotional nature of religious beliefs and the fact that some of the plaintiffs are children, the district court was well within its discretion to conclude that the plaintiffs' privacy interest outweighed the public interest in transparent judicial proceedings. The Court turned to the merits. The Supreme Court developed a three-pronged test in Lemon for Establishment Clause cases. A practice violates the clause if it has no legitimate secular purpose, if it advances or inhibits religion as its primary effect, or if it fosters excessive entanglement with religion. The Court concluded that the District did not violate the First Amendment: a) the students were not forced to participate in any religious exercise, as was the case in Lee, b) the iconography was not associated with the District, c) an objective observer would not assume that the presence of religious paraphernalia suggested the District’s endorsement thereof, d) the District has not sponsored any religious display, e) the students and the district selected the Church for totally secular purposes, f) there is no evidence that the Church used the event to influence the ceremony or that the District used the event to endorse religion, and g) the use of taxpayer funds for the Church rental was appropriate as a standard fee for use arrangement.

Judge Flaum concurred in the majority's opinion with respect to justiciability and anonymity but dissented on the merits. He concluded that a public school graduation at a church where there are both live human beings and inanimate objects urging religious messages on children violated the Establishment Clause. In his view, the venue's "sheer religiosity" conveyed a message of District endorsement.