Doe v. Elmbrook Sch. Dist.

687 F.3d 840

282 Ed. Law Rep. 829

John DOE, 3, a minor by Doe 3's next best friend DOE 2, et al., Plaintiffs–Appellants,

v.ELMBROOK SCHOOL DISTRICT, Elmbrook Joint Common School District No. 21, Defendant–Appellee.

No. 10–2922.

United States Court of Appeals, Seventh Circuit.

Reargued En Banc Feb. 9, 2012.

Decided July 23, 2012.

Alexander J. Luchenitser (argued), Attorney, Americans United for Separation of Church and State, Washington, DC, for Plaintiffs–Appellants.

Lori M. Lubinsky (argued), Attorney, Axley Brynelson, Madison, WI, for Defendant–Appellee.

Kerry L. Monroe, Covington & Burling LLP, Washington, DC, for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Wisconsin, and American Jewish Committee.

Jay A. Sekulow, American Center for Law and Justice, Washington, DC, for Amicus Curiae American Center for Law and Justice.

Richard M. Esenberg, Wisconsin Institute for Law & Liberty, Milwaukee, WI, for Amicus Curiae Alliance Defense Fund.

Before EASTERBROOK, Chief Judge, and POSNER, FLAUM, RIPPLE, KANNE, WOOD, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges.^*

FLAUM, Circuit Judge.

A group of past and present students and their parents (collectively, the “Does”) brought this action against the School District of Elmbrook (the “District”), claiming that the District's practice of holding high school graduations and related ceremonies at a non-denominational, evangelical Christian church was violative of the Establishment Clause of the Constitution of the United States. For redress, the Does sought injunctive, declaratory, and monetary relief. After denying the Does' motions for a preliminary injunction and for summary judgment, the lower court granted the District's motion for summary judgment, finding that the District did not act unconstitutionally when it held secular high school ceremonies at Elmbrook Church (the “Church”). The Does appealed.

Prior to being presented to our en banc Court, the Does' appeal was heard by a three-judge panel, which produced a majority opinion with three holdings, of which two were unanimous. Does v. Elmbrook Sch. Dist., 658 F.3d 710 (7th Cir.2011) ( vacated Nov. 17, 2011). The panel first concluded that the Does' case is justiciable, despite the District's cessation of holding high school ceremonies at the Church. Next, the panel determined that the district court did not err in allowing the Does to proceed anonymously. Finally, a majority decided that the District's use of the Church did not violate the Establishment Clause. We adopt the panel's original analysis on the issues of justiciability and anonymity and confine our discussion to whether the District's actions were constitutional under the First Amendment's Establishment Clause. Our conclusion is that the public school graduation ceremonies at issue, which took place in the sanctuary of a non-denominational Christian church, violated the Constitution.

Before advancing the reasoning behind our decision, it is important to note the limited scope of this opinion. The ruling should not be construed as a broad statement about the propriety of governmental use of church-owned facilities. Rather, the holding is a narrowly focused one, as it must be under our Supreme Court's jurisprudence. See McCreary Cnty. Kentucky v. ACLU of Kentucky, 545 U.S. 844, 867, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (“[U]nder the Establishment Clause detail is key.”); Lee v. Weisman, 505 U.S. 577, 597, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (“Our Establishment Clause jurisprudence remains a delicate and fact-sensitive one....”); Lynch v. Donnelly, 465 U.S. 668, 694, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring) (“Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.”). See also Cohen v. City of Des Plaines, 8 F.3d 484, 489 (7th Cir.1993) (citing Lynch, 465 U.S. at 678, 104 S.Ct. 1355) (“[O]ur inquiry ... under the [Establishment Clause] necessarily ‘calls for line-drawing; no fixed, per se rule can be framed.’ ”); Cooper v. U.S. Postal Service, 577 F.3d 479, 494 (2d Cir.2009) (“The fact that a [Contract postal unit] is located in a religious facility ... does not offend the Establishment Clause. Any violation must arise from the specific conditions of [the defendant's] structure and space, and its religious displays.”).

Nor should this opinion be read as critical of the cases permitting governmental use, in the proper context, of certain church-owned facilities. See, e.g., Otero v. State Election Bd. of Oklahoma, 975 F.2d 738 (10th Cir.1992) (holding that the Establishment Clause does not bar the use of churches as polling places in state and municipal elections); Porta v. Klagholz, 19 F.Supp.2d 290, 302–04 (D.N.J.1998) (finding that a charter school's use of space on church premises did not violate the Establishment Clause because, inter alia, “[t]here [was] no evidence of any religious iconography in the classroom area or in areas used by [the charter school].”). But see Spacco v. Bridgewater School Department, 722 F.Supp. 834 (D.Mass.1989) (enjoining a school district from assigning two students to classes held in facilities owned by a church, based in part on the need for students to “pass beneath a large cross” to enter the facility and the existence of religious flyers that were confronted upon entry). We do not question the vitality of those decisions; rather, we underscore how this case differs. The difference is one of degree, not kind. When confronted with an Establishment Clause challenge of this nature, the Supreme Court requires us to examine the context in which government interacts with a religious organization. Here, the involvement of minors, the significance of the graduation ceremony, and the conditions of extensive proselytization prove too much for the District's actions to withstand the strictures of the Establishment Clause.

We do not speculate whether and when the sanctuary of a church, or synagogue, or mosque could hold public school ceremonies in a constitutionally appropriate manner. Nor do we seek to determine whether and when this sanctuary, or one akin to it, could be properly used as the setting for a graduation under other circumstances. For example, if a church sanctuary were the only meeting place left in a small community ravaged by a natural disaster, we would confront a very different case. It is not our charge to consider the myriad alterations to the factual scenario before us in an attempt to determine what circumstances could have rendered the District's practice constitutional. Rather, our duty is to consider the set of facts before us, and on those facts, we conclude that an unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbrook Church.

I. Background

A. Facts

1. The District

The District is a municipal public school district centered around Brookfield, Wisconsin, a suburb to the west of Milwaukee. Its two major high schools are Brookfield Central and Brookfield East. For part of the last decade or so, Central and East have held their high school graduation ceremonies in the main sanctuary of Elmbrook Church,¹ a local Christian evangelical and non-denominational religious institution. Central began the practice in 2000, and East followed in 2002; both schools rented the Church for graduation every year thereafter through 2009. For at least some years since 2003, Central also rented the Church's chapel, a smaller room, for its senior honors night. East rented the Sharon Lynne Wilson Center for the Arts, a secular facility, for its honors night.

The impetus to move Central's graduation to the Church appears to have come from the student officers of the senior class of 2000, who believed that the school's gymnasium—the previous venue—was too hot, cramped and uncomfortable. Those attending were packed in; they had to sit on hard wooden bleachers or folding chairs; and there was no air conditioning. Seeking a better alternative, the student officers decided upon the Church, which was much larger than the gymnasium and had more comfortable seats, air conditioning and ample free parking. They presented their idea to District Superintendent Matt Gibson ² and then to the senior class, which voted in favor of the proposal. After the vote, Principal Jim Brisco made the ultimate decision to choose the Church, and Superintendent Gibson approved. A similar process began at East two years later, and Principal Joe Schroeder “eventually adopted the proposal, after a majority of seniors voted for it.” Until 2005, each year the students in the senior class participated in advisory votes to choose between two or three venues.³ These preliminary selections were made by school officials and senior class officers. The Church was always one of them, and the Church invariably emerged as the overwhelming favorite. ⁴ In 2006, the principals of East and Central determined that holding a vote for the 2007 graduation venue would be pointless and simply selected the Church after it was recommended to them by the senior class officers of the two schools.

Superintendent Gibson and Tom Gehl, a member of the school board since 2005 and president of the school board since 2009, are both members of the Church. The Does have not alleged that Superintendent Gibson or Board President Gehl have engaged in any efforts to steer graduation ceremonies to the Church, nor do they allege that either of these officials has misused his office to benefit the Church or to form a relationship between the District and the Church. While there is no evidence that either Superintendent Gibson or Board President Gehl influenced or attempted to influence the student vote that resulted in the selection of the Church, Superintendent Gibson ultimately had to approve of the decisions made at the...