Friday, September 09, 2011
Ind. Decisions - 7th Circuit rules in public school establishment of religion case
In a 67-page, 2-1 opinion today, in a case out of Illinois, Doe 3 v. Elmbrook School District, Judge Ripple writes:
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. * * *In a dissent beginning on p. 55 of 67, Judge Flaum writes:
Finally, we emphasize that our conclusion in this case rests on the record before us. Indeed, the parties represented at oral argument that they had agreed to proceed to summary judgment without taking any discovery. As we have explained, however, Establishment Clause cases are decided on their unique circumstances, and, if we are to remain faithful to the direction of the Supreme Court and to our own case law, we must decide the case on the record before us. Whether a practice violates the Establishment Clause is largely a legal issue, but it is a legal issue that is highly dependent on the facts of each case. Here, the Does present no evidence that the District sponsors the Church’s beliefs or mission. The record before us therefore does not permit a conclusion that the District’s choice of venue has the effect of conveying a message of endorsement of the Church or its views or results in an enduring and tangled relationship between the District and the Church. Accordingly, the district court properly granted summary judgment in favor of the District on the Does’ Establishment Clause claim.
I believe that conducting a public school graduation ceremony at a church—one that among other things featured staffed information booths laden with religious literature and banners with appeals for children to join “school ministries”—runs afoul of the First Amendment’s establishment clause as applied to the states via the Fourteenth Amendment’s due process clause.2 In my view, that conclusion is consistent with well established doctrine prohibiting school administrators from bringing church to the schoolhouse. E.g., People of State of Illinois ex rel. McCollum v. Bd. of Educ. of Sch. Dist. No. 71, Champaign County, Illinois, 333 U.S. 203, 211-12 (1948) (religious instruction in public schools held unconstitutional). The same result should obtain when administrators bring seminal schoolhouse events to a church—at least to one with the proselytizing elements present in this case. The constitutional flaw with such activity is that it necessarily conveys a message of endorsement. Moreover, the Supreme Court’s “coercion cases,” Lee v. Weisman, 505 U.S. 577 (1992) and Santa Fe, cannot be meaningfully distinguished—both because endorsement is intrinsically coercive and because there was coerced activity in this case. * * *
I conclude that the practice of holding high school graduation ceremonies at Elmbrook Church conveys an impermissible message of endorsement. Such endorsement is inherently coercive, and the practice has had the unfortunate side effect of fostering the very divisiveness that the establishment clause was designed to avoid. Therefore, I respectfully dissent.
Posted by Marcia Oddi on September 9, 2011 04:25 PM
Posted to Ind. (7th Cir.) Decisions