Over a strong dissent by two justices, the U.S. Supreme Court on Monday declined to hear the appeal of a Wisconsin school district of a ruling that the district’s use of a Christian church for its high school graduation ceremonies was unconstitutional.
The appeal in Elmbrook School District v. Doe (Case No. 12-755) had been pending at the high court for more than a year as the justices put it on hold while they decided a case about prayers delivered at municipal meetings.
On Monday, in a dissent to the court’s refusal to take up the Elmbrook case, Justice Antonin Scalia said that the church-graduation case should have at least been sent back to the U.S. Court of Appeals for the 7th Circuit, in Chicago, for reconsideration in light of the municipal-prayer decision, Town of Greece v. Galloway. Justice Clarence Thomas joined Scalia’s dissent.
“It is perhaps the job of school officials to prevent hurt feelings at school events,” Scalia said. “But that is decidedly not the job of the Constitution. It may well be, as then-Chief Judge Easterbrook [of the 7th Circuit] suggested, that the decision of the Elmbrook School District to hold graduations under a Latin cross in a Christian church was ‘unwise’ and ‘offensive.’ But Town of Greece makes manifest that an establishment of religion it was not.”
In Elmbrook, the full 7th Circuit court ruled 7-3 in 2012 that the school district’s use of a Christian church for its high school graduation ceremonies resulted in government endorsement of religion and coercion of students in violation of the First Amendment’s prohibition against government establishment of religion.
From 2000 to 2009, the school district near Milwaukee had used the auditorium of Elmbrook Church, an evangelical “megachurch” with many Christian symbols on display throughout its facilities, for the graduation ceremonies of its two high schools.
The practice was challenged by a group of non-Christian students and parents, whose suit alleged that during some graduation ceremonies the church operated its information booth or passed out evangelical literature.
The majority on the 7th Circuit court was troubled by the breadth of Christian symbols and activities at the church during the public school event. Dissenters cited various rationales, including that the objectors were being hypersensitive to religious symbols.
The Supreme Court put the school district’s appeal on hold while it decided Town of Greece, which on its face dealt with a different fact situation—prayers before town meetings—but in terms of legal doctrine dealt with the high court’s various establishment clause tests. In Town of Greece, the court ruled 5-4 that the New York state town’s prayer practices did not violate the establishment clause.
In his dissent from denial of review in the Elmbrook case, Scalia said the Town of Greece decision “made clear a number of points with which the 7th Circuit’s decision is fundamentally inconsistent.”
First, Scalia said, the Town of Greece decision abandoned the Supreme Court’s “endorsement” test.
“That infinitely malleable standard asks whether governmental action has the purpose or effect of ‘endorsing’ religion,” Scalia said. The 7th Circuit had relied on the endorsement test in striking down the school district’s choice of the megachurch as the graduation venue, even though the church facility was chosen only because it offered “more space, air conditioning, and cushioned seating,” Scalia said.
Secondly, Scalia said, the 7th Circuit wrongly relied on the high court’s “coercion test,” an establishment clause test that weighs whether a challenged practice coerces participation in religion.
“In this case, it is beyond dispute that no religious exercise whatever occurred,” Scalia said. “At most, [the challengers] complain that they took offense at being in a religious place. ... Were there any question before, Town of Greece made obvious that this is insufficient to state an Establishment Clause violation.”
Finally, Scalia said, the 7th Circuit’s Elmbrook decision did not account for historical practice, which Town of Greece made clear was important in weighing potential establishment clause violations.
The 7th Circuit failed to note that “early public schools were often held in rented rooms, church halls and basements, or other buildings that resembled Protestant churches.”
Scalia said the Supreme Court should have taken up the school district’s appeal itself or vacated the decision and sent it back to the 7th Circuit for reconsideration in light of Town of Greece.
A version of this news article first appeared in The School Law Blog.