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John Doe, 3, A Minor By Doe 3's Next Best Friend Doe 2, et al v. Elmbrook School District

September 9, 2011

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.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 09-cv-409-Charles N. Clevert, Jr., Chief Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED FEBRUARY 9, 2011

Before EASTERBROOK, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.

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. 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 ("the Church"), a local Christian *fn1 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 and then to the*fn2 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.*fn3 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, other than Superintendent Gibson's approval of decisions made at the school level.*fn4

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. In the same year, Brett Bowers*fn5 became principal of East when Mr. Schroeder left. 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.*fn6

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.*fn7 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 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. The first time Central *fn8 held its graduation in the sanctuary, the cross was covered, apparently by accident. During subsequent*fn9 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. In that*fn10 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 Ameri-cans 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 membership or non-membership." R.8 (R.4 Vol. 2), Ex. 77. The parent's response questioned the veracity of that account and speculated that Superintendent Gibson's membership in the Church played a role in the Church's selection:

Sorry to say, but every time this comes up you try to obfuscate what your role was. You refuse to take responsibility and that's disappointing.

Had you excused yourself from the decision because of the obvious conflict of interest your membership in the church creates, it is likely cooler heads would have thought this through thoroughly, sought objective counsel *before the decision was made*, and answered no.

How could your membership in the church not have influenced your decision? It made it and still makes it impossible for you to be objective. You have a pronounced allegiance to the church and your religion. It is not only a financial coup for the church to host commencements, but it also brings the church the reflected glory of the state's accomplishment and graduates' accomplishments . . . .

Id.

Another parent's email, on which employees of Freedom from Religion Foundation, the Anti-Defamation League and the ACLU of Wisconsin were copied, raised similar concerns:

There is an obvious conflict of interest regarding the Church: After all, you are a member. And, after all, the particular Church in question has a direct mission of evangelism. Whether or not evangelism was the motive is irrelev[a]nt. The relev[a]nt point is that you have violated the trust of those in the community who wish to attend a graduate ceremony in a secular, non-church setting.

Id. Ex. 36.

In response to an email in 2003, Mr. Gibson observed that he had been superintendent for four years before "the student movement at Brookfield Central to look at alternatives for graduation began" and asked the addressee to "refrain from . . . attributi[ng]" the initiative to him. R.9 (R.4 Vol. 3), Ex. 92. The addressee was unpersuaded: "Well, Matt, regardless of what you say, I am convinced that your membership in the church was the primary factor in the church being okayed as a site for hosting commencements." Id. Additionally, the addressee complained that the Church discriminates against non-believers and homosexuals and that it "preaches a fundamentally hateful message," and he speculated that the student vote approving the venue was staged "to make it look like a 'democratic' process." Id.

A 2006 letter from a parent to Superintendent Gibson praised the District's increased "sensitivity toward non-Christian students" but requested that the District try to avoid scheduling school events and tests on Jewish holidays and objected to the use of the Church as a graduation venue. R.8 (R.4 Vol. 2), Ex. 37 at 1. In response, Superintendent Gibson sent the letter to Principal Bowers and Principal LaBonte along with a note to "keep the input on Jewish holidays in mind to the extent possible when scheduling" and to put an alternative graduation venue proposed by the parent on the consideration list for ensuing years' graduations. Id.

A series of exchanges in 2007 between Superintendent Gibson and Aram Schvey, litigation counsel for Americans United, explored the constitutionality of the practice. Although he defended the venue, Superintendent Gibson assured Schvey that "there are no references to religion or to the church in the graduation program," that no religious literature would be distributed and that Superintendent Gibson previously has "request[ed] removal of any non-permanent religious banners that may be on stage" and would continue to do so. Id. Ex. 40. Schvey appreciated these steps, but he requested that the District cover the cross and "all other religious iconography[,] including permanent banners," or select a secular venue. Id. Ex. 42 at 2. Superintendent Gibson responded that the Church "made a policy decision several years ago that [the cross] not be veiled for rentals." Id. at 1.

In many of the letters and correspondence, Superintendent Gibson noted that the District was building a new field house that could accommodate graduation ceremonies and had been engaging in efforts to obtain funding to renovate Central's and East's gymnasiums. Although earlier efforts to obtain funding had failed, the public later voted in favor of funding that allowed the District to begin construction and renovation. In 2010, Central and East moved their graduation ceremonies to the District's newly completed field house. Additionally, in July 2009, Principal LaBonte declared his intention to move Central's 2010 honors night to its newly renovated gymnasium; in supplemental briefing before us, the District represented that the promised move had occurred.

4. The Does

The plaintiffs are current and former students of District schools and their parents. Doe 1 graduated from either Central or East in 2009. Doe 2 is Doe 1's parent and has an older child whose graduation ceremony was held in the Church four years earlier, as well as younger children who attend Elmbrook schools. One of Doe 2's younger children is Doe 3, who "will graduate from a District high school no later than 2014." Appellants' Br. 17. Does 1 through 3 all attended the graduation ceremonies of Doe 1 and of Doe 2's older child. Does 4 and 9 are the parents of children currently attending schools in the district; their eldest children are expected to graduate from high school in 2016 and 2015, respectively. "Does 5 and 6 are the parents of Does 7 ...


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