Doe v. Elmbrook Sch. Dist.

Citation658 F.3d 710,273 Ed. Law Rep. 79
Decision Date09 September 2011
Docket NumberNo. 10–2922.,10–2922.
PartiesJohn 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

658 F.3d 710
273 Ed.
Law Rep. 79

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.

Argued Feb. 9, 2011.Decided Sept. 9, 2011.


[658 F.3d 712]

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, LLP, Madison, WI, for Defendant–Appellee.Roger A. Ford, Attorney, Covington & Burling LLP, Jay A. Sekulow, Attorney, American Center for Law and Justice, Washington, DC, Richard M. Esenberg, Attorney, Milwaukee, WI, for Amici Curiae.Before EASTERBROOK, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.RIPPLE, Circuit Judge.

A group of pseudonymous plaintiffs, referring to themselves as Does 1 through 9, brought this action against the Elmbrook School District (“the District”) in the United States District Court for the Eastern District of Wisconsin. They alleged that the District's practice of holding high school graduation ceremonies and related events at a Christian church rented by the District for the occasion violated the Establishment Clause of the First Amendment. They sought preliminary and permanent injunctions, a declaratory judgment and damages. After the district court denied the Does' motion for a preliminary injunction, the parties filed cross-motions for summary judgment. The district court granted the District's motion and denied the Does' motion. The Does now appeal. We hold that, on the record before us, the District's use of the rented church space was neither impermissibly coercive nor an endorsement of religion on the part of the District. Because there was no violation of the Establishment Clause, we affirm the judgment of the district court.

I
BACKGROUND
A. Facts1. 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 (“the Church”),1 a local

[658 F.3d 713]

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 seems 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.” R.56 at 12, ¶ 83. Until 2005, each year the students in the senior class participated in advisory votes to choose between two or three venues. These preliminary selections were made by school officials and senior class officers. The Church was always one of them, and the Church invariably emerged the overwhelming favorite.3 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. There is no evidence that either Superintendent Gibson or Board President Gehl had anything to do with the selection of the Church for graduations,

[658 F.3d 714]

other than Superintendent Gibson's approval of decisions made at the school level.4

With the exception of Mr. Gibson, who has been Superintendent of the District since 1995, the major players on the District's side have changed. Don LaBonte took over as principal of Central in 2005 after two intervening successors to Mr. Brisco.5 In the same year, Brett Bowers became principal of East when Mr. Schroeder left.6 The Church charged a standard rental rate to the District, which ran between $2,000 and $2,200 for each graduation exercise, and between $500 and $700 for honors night. Money raised by the senior class of each school covered part of the rental fees, and the District funded the rest through its general revenues, which come from property taxes.

2. The Church

The atmosphere of the Church, both inside and outside the sanctuary, is indisputably and strongly Christian. Crosses and other religious symbols abound on the Church grounds and the exterior of the Church building, and visitors encounter these symbols as they drive to the parking lot and walk into the building. Many of these symbols—including a cross on the Church roof and a sign with a cross and the words “ELMBROOK CHURCH”—are visible from the public intersection outside the Church. The street names given the drives approaching the Church are “Agape” and “Barnabas.” R.7 (R.4 Vol. 1), Exs. 1–28, 1–29.

To reach the sanctuary, visitors must pass through the Church lobby, which also has served as a natural congregation point for graduates and their guests after past graduation ceremonies. The lobby contains tables and stations filled with evangelical literature, much of which addresses children and teens, and religious banners, symbols and posters decorate the walls.7 In the middle of the lobby is a large, circular desk displaying pamphlets such as “{young adults},” “{couples ministry},” “{middle school ministry},” “{high school ministry}” and “{college ministry}.” R.52, Exs. 172–28, 172–29. The District admits that Church members manned information booths that contained religious literature during the 2009 graduation, and a DVD

[658 F.3d 715]

recording of the 2002 ceremony shows people staffing these tables. The District also admits that during the 2002 ceremony, “Church members passed out religious literature in the lobby,” R.65 at 19–20, ¶ 86, although neither the District nor the Does divulge further details about how the distribution took place or at whose behest. According to Doe 1, when he attended his older sibling's graduation, “[m]embers of the church, instead of school officials, handed out graduation materials during the ceremony.” R.7 (R.4 Vol. 1), Ex. 21 at 2, ¶ 9.

The graduation ceremonies take place on the dais at the front of the sanctuary, where school officials and students with roles in the ceremony are seated. An enormous Latin cross, fixed to the wall, hangs over the dais and dominates the proceedings.8 The first time Central held its graduation in the sanctuary, the cross was covered, apparently by accident.9 During subsequent graduations, the Church refused Superintendent Gibson's requests to veil the cross, in keeping with a general Church policy against covering its permanent religious displays. The Church did agree, however, to remove any non-permanent religious symbols from the dais. The chapel used by Central for its senior honors night also contains a cross.

During the ceremonies, “graduating seniors ... sit down in the front, center rows of pews of the [sanctuary's] main level.” R.56 at 9, ¶ 56. Guests sit in the other pews. The parties agree that “Bibles and hymnal books remain in all the pews,” id. at 6, ¶ 34, as do a “yellow ‘Scribble Card for God's Little Lambs,’ a pencil, a donation envelope entitled, ‘Home Harvest Horizon: offering to the work of Christ,’ ” and other religious literature, id. ¶ 35. There is no evidence that any of these materials were placed in the pews specifically for the graduation ceremonies.

3. The Controversy

Complaints about the District's use of the Church arose soon after the practice began. In 2001, a parent asked the District to stop holding graduation ceremonies at the Church because the parent, a non-Christian, did not want her child exposed to the Church's alleged teachings about those who do not share its faith.10 In that same year, the Freedom from Religion Foundation and the American Civil Liberties Union (“ACLU”) of Wisconsin voiced objections to the graduation site and asserted that it violated the Constitution. The Anti–Defamation League also objected in 2002, followed by Americans United for Separation of Church and State (“Americans United”) in 2007.

A sampling from the series of emails and letters exchanged between objecting parties and the District illustrates the nature of the dispute. In 2002, Superintendent Gibson sent an email to one parent insisting that his only role in the selection of the site was “allow[ing] each decision” made independently by the schools “to stand” and that the decisions “had nothing to do with [his] particular church...

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