7th Circuit Establishment Case: Doe v. Elmbrook School District

The Seventh Circuit, sitting en banc decided the case of Doe v. Elmbrook School District,(pdf) concluding, by a vote of 7-3, that the school’s practice of holding graduation ceremonies in an evangelical church violated the First Amendment’s Establishment Clause.

The Court’s decision was quick to point out that the determination was a factually sensitive one, not a blanket decision that school functions could never be conducted on religious property. But, in this case, for reasons having to do with the fact that minors were involved, that graduation is such an important ceremony, and that there were elements of proselytization, the school went too far and violated the First Amendment.

Apparently, the school had been conducting graduation ceremonies in the church facility since 2000 after the student body officers of the time complained that the school gym was too hot and crowded and recommended the church. The school superintendent and the school board president were both members of that church, though there is no particular evidence that this necessarily played a role in the decision to conduct activities there.

The lobby of the Church had (as one might expect) a lot of religious symbols and literature. Perhaps more unusual was that church members were passing out religious literature in the lobby and, at least on one occasion, church members handed out graduation materials as well. In the sanctuary where the ceremony took place, a 15 foot cross dominates the wall behind the dais. The church declined a school request to cover up the cross (or other permanent fixtures) but removed or covered other religious imagery. Bibles and hymnals remain in the pews where the audience sits.

In this case, high school students and their younger siblings were exposed to graduation ceremonies that put a spiritual capstone on an otherwise-secular education. Literally and figuratively towering over the graduation proceedings in the church’s sanctuary space was a 15- to 20-foot tall Latin cross, the preeminent symbol of Christianity. That symbol “carries deeply significant meaning for those who adhere to the Christian faith.” . . . Moreover, it is a symbol that invites veneration by adherents.
. . .
Upon passing through the exterior doors of the church, attendees proceeded into a lobby that contained numerous religious materials. Those materials included pamphlets for “middle school” and “high school” ministries. The middle school ministry pamphlet stated, “We are calling students to live and love like Jesus.” As previously noted, a poster on the wall asked, “Hey Jr. Highers! Who Are Your Heroes?” and depicts pop culture icons alongside Jesus Christ.
. . .
Put simply, the environment was pervasively Christian, obviously aimed at nurturing Christian beliefs and gaining new adherents among those who set foot inside the church.

Regardless of the purpose of school administrators16 in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state. That is, the activity conveyed a message of endorsement. High school graduations enjoy an iconic place in American life.

It was not permissible, the court held, to force students of different or no faith to choose between endure a pervasive religious environment or not attending a school function as momentous as graduation.

Judge Hamilton has a thoughtful concurrence in which he made an observation I appreciated:

The danger, of course, is that this “reasonable, objective observer,” as in most fields of law, tends to sound a lot like the judge authoring the opinion.

Judge Hamilton responds to Judge Posner’s dissent wherein Judge Posner says that Plaintiffs are being (I’m paraphrasing) hypersensitive ninnies by asking, “would Christian majorities feel comfortable or excluded if their public school graduation ceremonies were held in synagogues, mosques, or Baha’i temples, for example?” Of course they’d complain if the tables were turned, says Judge Hamilton.

This point is not a criticism of those who would prefer not to have their ceremonies in such locations. The point is that the plaintiffs in this case, who are not adherents of the majority Christian faith in this school district, were not unreasonable, obtuse, or hypersensitive in perceiving a government endorsement of Christianity when rites of passage with the symbolic importance of public high school graduations were held in a Christian sanctuary beneath the powerful symbol of the empty cross.