Erosion of Lee v. Weisman in the Lower Courts

Last month, in one of the largest curtailments of the Establishment Clause in recent history, the Seventh Circuit Court of Appeals held that public schools in Wisconsin could hold high school graduation ceremonies in churches without offending the First Amendment.

For nearly ten years, Brookfield Central and Brookfield East high schools held their high school graduation ceremonies in the sanctuary of Elmbrook Church, a non-denominational evangelical Christian Church.  As one might expect, the church grounds are filled with religious symbols.  At the front of the sanctuary, in the backdrop of the ceremony, hangs a 20-foot cross, which the church refused to cover up.  Additionally, during the ceremony, members of the congregation manned booths in the lobby containing religious brochures, many of which were directed at young adults.  The ceremony itself, however, contained no religious elements.

Parents in the school district raised concerns over the venue almost immediately after the practice began in 2000.  In 2009, a group of non-Christian parents filed suit in federal district court in Wisconsin, seeking damages and an injunction against using the church for school events.  The district court dismissed the case, entitled Doe v. Elmbrook School District.  On appeal, a divided court agreed that a ceremony that contained religious symbols but was devoid of any coerced religious participation did not constitute excessive entanglement with religion in violation of the First Amendment.

The Seventh Circuit’s holding is utterly inconsistent with the Supreme Court’s 1992 ruling in Lee v. Weisman, a seminal case about religion in public schools.  Lee concerned a non-sectarian invocation and benediction delivered by a rabbi during a public middle school’s graduation ceremony.  In a 5-4 decision, the court ruled that the prayer constituted “a state-sponsored and state-directed religious exercise in a public school.”  Writing for the majority, Justice Kennedy recognized that students faced pressure to stand as a group and remain silent during the prayer, and that, while attendance at one’s graduation ceremony is voluntary, “absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years.”  Hosting graduation ceremonies in religious institutions creates the same harms that Supreme Court recognized in Lee.  The students who brought the case felt “uncomfortable, upset, offended, unwelcome and/or angry” due to the ceremony’s setting.  Students were faced with the choice between entering an inherently religious setting, where they would undoubtedly encounter prominent religious symbols with which they were uncomfortable, or not attending their commencement.  As the court noted in Lee, “It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.”

Unfortunately, the Seventh Circuit is not the only court to erode the Court’s holding in Lee over the last twenty years.  Five months after the Supreme Court handed down its decision, the Fifth Circuit Court of Appeals upheld a Texas school district’s policy of allowing public high school students, selected by the student body, to deliver non-sectarian, non-proselytizing invocations at their graduation ceremonies.

Should the students of Elmbrook School District decide to petition the Supreme Court to hear the case, there is a genuine possibility that the Court will decide to grant certiorari.  While many school districts around the county hold graduation ceremonies in religious institutions, most districts agree to change venues upon threat of a lawsuit.  For example, after the ACLU filed a lawsuit to enjoin a New Jersey high school from continuing to hold graduation ceremonies in a Baptist Church, the school district quickly agreed to hold the ceremony elsewhere in subsequent years.  Consequently, few lawsuits make it to trial, preventing the development of a circuit split.  The only other court to take up the issue, a federal district court in Connecticut, granted a preliminary injunction last year prohibiting a Connecticut high school from conducting graduation ceremonies at a Christian church, finding that there was “a substantial likelihood” that the ceremonies would violate the Establishment Clause, but has yet to rule on whether a permanent injunction should be issued.  Even without a circuit split, there may be four justices on the Supreme Court who are willing to grant certiorari to reiterate the importance of Lee and put the issue to rest.

Given the current makeup of the Court, Elmbrook provides the opportunity for a rare victory for civil libertarians, should it make its way to the Supreme Court.  Only three of the current justices—Justices Kennedy, Scalia, and Thomas—participated in the Lee decision.  Justice Kennedy wrote the majority opinion, while Justice Scalia wrote a scathing dissent, joined by Justice Thomas.  Chief Justice Roberts and Justice Alito would be almost certain to join with Justices Scalia and Thomas in upholding the constitutionality of hosting graduation ceremonies in religious institutions.  As Deputy Solicitor General, John Roberts filed an amicus brief in Lee, in which he wrote that the graduation ceremony was not a violation of the Establishment Clause.  As a judge on the Third Circuit, Justice Alito dissented in a case that declared unconstitutional a policy that allowed the high school’s senior class to vote on whether to have a student-led prayer at their graduation.  On the other side, Justices Breyer and Ginsburg, who voted to strike down a student-led invocation during pregame ceremonies at high school football games, would likely be joined in striking down Elmbrook School District’s practice by Justices Kagan and Sotomayor, who reiterated the importance of the Establishment Clause in a dissenting opinion in Arizona Christian School Tuition Organization v. Winn.  Since Justice Kennedy wrote the majority opinion in Lee, one would expect him to reach the same outcome in Elmbrook, resulting in a 5-4 decision to reverse the Seventh Circuit.  As usual, as Kennedy goes, goes the Court.

UPDATE (11/18/2011)

The Seventh Circuit Court of Appeals yesterday vacated the opinion of the three-judge panel, and will hear the case en banc.  A date has not yet been set for oral argument.


Latest comments
  • I find myself wondering: what reason did Elmbrook School District have (and give) for using a church sanctuary? Is there any sense in which they might have had a bona fide problem finding a space big enough for graduation that fit within their graduation budget? You know how local high schools in your erstwhile college town took over Duke’s campus for graduation week! Is it just that Elmbrook didn’t have a venue less religiously laden to turn to?

    Of course the constitutional legal issue doesn’t turn on the space and budget constraints of the school district, but I’d be interested to know whether the briefs or the 7th Circuit decision attended to these practical questions.

    What do you think: would it be of interest to you as a cultural observer and legal analyst whether there might be a non religion promoting reason behind this choice of venue? Why or why not?

    On a separate point: I enjoyed your nose counting and explicating. Hope the plaintiffs are reading this blog too!

      • Greg, I totally agree with you. It’s always troubling when government actors turn to democratic legitimacy as a justification for first amendment violations (or violations of other minority rights). The first amendment exists exactly so that some issues are not put to a vote, and a certain basic set of rights is not subjected to being overrun by majority opinion. If we allowed a majority vote to decide whether minority rights were or were not respected, we wouldn’t be a constitutional democracy. The role of the court in a case like this should be to prevent even one student from facing a choice like the one you describe, not to rubber stamp the decision of a majority who cannot be expected to recognize the significance of minority rights and act to protect them.

  • Sure, Greg and Noah, your bottom line is exactly what we lawyers, especially constitutional lawyers, have been trained to think and say. But don’t you think all of us (school districts and plaintiff-side lawyers included) ought to anticipate and consider ways to prevent needless showdowns?

    I wonder if these lawyers did? What were those other possible venues? Now I really would like to know if they suffer from the same problem as the church? Did they talk to the school district about the cost of adding air conditioning to their version of Cameron? (I remember many May graduations that were utterly miserable in Cameron before Duke got it together to add A/C!). Or did they regard that sort of discussion as conflict resolution beneath their litigation- chops dignity? (or, possibly, a waste of a great opportunity to get a super useful precedent on the books?)

    As a cultural observer, it pains me to see how little regard “the majority” has for the practical problem solving skills of our profession. In large part that is because some lawyers show no interest at all in practical questions and instantly jump to rights claims, whatever their costs. In the end, I’m right there with you about not putting minority rights to a student vote or a school district negotiation. If the vote or the discussions don’t protect minority rights, they don’t and it’s time to go to court. But I have to say, if I were the court, I’d be much more welcoming of your claims if I knew you’d exhausted your remedies in more than simply a legal sense. And, it really makes a difference with the court of public opinion to show that you have more than one skill to deploy in problem solving. The less justifiably aggravated normal people are with constitutional lawyers, the better for our chances of actually promoting a constitutional culture and protecting constitutional rights.

    Greg, can you make it part of your blogger brief now to follow up with what happens–practically–in the Elmbrook School District? Armed with this new hard bargaining power, what do the plaintiff side lawyers now get out of their discussions with the school district? A big A/C unit? a new non-religious venue? If they’re not involved in the post big win (assuming SCOTUS doesn’t take cert to reverse) discussions, who is?

    I’d love to know, too, what that local public thinks of the case: Any interesting student or parent or community member op-eds? Have you considered submitting an op-ed yourself? Going down this blogger path shows you’re invested in a certain measure of “public law”–making it easy for overbusy readers of your blog to learn something substantive and deeply interesting about our “establishment clause” law. But, with a snappy op-ed in the local paper, you could make it count for the most “interested” publics–the students, parents, community members and school district decision-makers too!

    Just what you need, I know….another good idea for what to do with your languorous HLS 1st year time…