A Wisconsin school district held graduation ceremonies for its two high schools in a non-denominational, evangelical Christian church for several years. The district had previously held graduation ceremonies in the school gym, but students found the location cramped, hot, and uncomfortable. The church provided air conditioning and more comfortable seats at a reasonable rent.

But the church also had a 15-20 foot tall cross at the front of the sanctuary, as well as Bibles and hymnals in the pews and religious literature in the lobby, including signs and pamphlets targeted at children. Some years, church members staffed the information booths and/or distributed religious literature. District students and their parents who are not Christians challenged the district’s practice of holding the ceremony at the church.

The District Court and a panel of the Seventh Circuit held that the practice did not violate the Establishment Clause. But the Seventh Circuit reheard the case en banc and reversed.

Following Supreme Court decisions finding it unconstitutional for a school to include a prayer as part of a graduation ceremony or football game, the majority found the same type of religious endorsement and coercion in holding the graduation ceremony in a church amongst pervasively religious symbols. “Regardless of the purpose of school administrators in choosing the location, the sheer religiousity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state.” The majority reasoned that a reasonable observer could “conclude that the District would only choose such a proselytizing environment aimed at spreading religious faith - despite the presence of children, the importance of the graduation ceremony, and, most importantly, the existence of other suitable graduation sites - if the District approved of the Church’s message.”

Three judges wrote dissenting opinions arguing that holding a secular graduation in a church does not “show the same governmental endorsement, sponsorship or coercion of any religious activity” that is present when a district leads students in prayer at graduation or a football game. The dissenters argued that a reasonable attendee of the ceremony would understand that the religious symbols and displays were not placed there by the district but by the church from which the district was renting the space. They asked whether attendees would similarly see government endorsement of the Bulls and United Airlines if the ceremony were held at the United Center, or endorsement of the coming attractions if the district had rented the local movie theatre for the ceremony.

The dissenters also questioned how the principles of the majority decision would be applied to other situations: whether school administrators must now forbid teachers from wearing religiously based accessories in the classroom, like a head scarf or jewelry with a cross or Star of David. The dissenters also questioned whether public school athletes would be permitted to enter religious schools for competitions. And whether elections boards could continue to use churches as voting places.

As Judge Posner notes in his dissent, the rules regarding the Establishment Clause are vague and do not provide effective guidance. Cases dealing with the Establishment Clause often lead to split opinions, and small variations in the facts can be determinative.  As we recently noted, the Second Circuit addressed a corollary question and found that the New York Public Schools’ policy forbidding the use of school facilities (outside of school hours) for religious worship services violated the Establishment Clause. So a church must be allowed to rent school facilities for worship services, but a school cannot rent church facilities for graduation ceremonies. This area of the law remains complicated; districts should avoid using religious places for school activities, and we will be on the look-out for potential Supreme Court review of the issue.