(Updated Oct. 8) The U.S. Supreme Court has granted Elmbrook's request for more time to file its appeal of a federal appellate ruling that it violated the First Amendment when it held high school graduation in a church.
U.S. Supreme Court Justice Elena Kagan signed the order on Thursday granting the request and setting the new deadline for filing the appeal as Dec. 20, Kristi Foy, Elmbrook's staff attorney and director of human resources, said Monday.
Foy said she expects the lawyers Elmbrook hired (see original story below) will take nearly the full extra 60 days to file their appeal documents.
With several high-profile legal groups now lined up to take Elmbrook's church-graduation case pro bono, the school district on Thursday asked for a 60-day extension to file its appeal before the U.S. Supreme Court.
The Becket Fund for Religious Liberty, Professor Michael McConnell of Stanford Law School, and the Washington D.C. law firm of Kirkland & Ellis LLP sought to represent the Elmbrook School district, which agreed this week to retain them. They join Lori Lubinksy of Axley Brynelson LLP who has handled the case thus far.
"We're incredibly fortunate to have the quality of attorneys here working pro bono," Kristi Foy, Elmbrook's staff attorney and director of human resources, said Thursday. "Professor McConnell's academic focus is on the establishment clause."
An attorney for nine families who sued the school district over its decade-long use of a Town of Brookfield megachurch for Brookfield Central and East's graduation ceremonies said his clients were disappointed the district was pressing forward.
The Elmbrook School Board voted 5-2 in August to seek a rare high court review.
"They're disappointed but they’re not surprised given how hard and how long this school district has been fighting this," said Alex J. Luchenitser, associate legal director for Americans United for Separation of Church and State.
The 7th Circuit Court of Appeals ruled in July that Elmbrook violated the Constitution's First Amendment when it held public high school graduations at Elmbrook Church amid religious imagery including a large cross over the stage and Bibles in the pews where attendees sat.
The 7-3 ruling was the first victory for the families and overturned previous federal district and appellate panel rulings in favor of the school district. Elmbrook said it held its graduations there because the air-conditioned, large auditorium offered more seating and comfort than the school gyms, and no religious prayers or references were made.
Could become major church-state case
The federal appellate court ruling was the first in the nation on the issue of holding public graduations in a religious setting, attorneys said.
"If the Supreme Court agrees to hear the school district’s appeal, it will become one of the most significant church-state cases in many years," said Luke Goodrich, Becket Fund deputy general counsel.
With an Oct. 22 deadline looming to file its appeal, the school district and its lawyers sought an extension on Thursday to adequately prepare.
"We've had decisions go both ways (in the case), and certainly there's merit" justifying an appeal, Foy said. "We think there are broad implications and we want some clarity from the Supreme Court."
Elmbrook hasn't held its graduations at the church since 2009 — now holding them at a newly built East Field House, but the districts wants clarification on whether in the future it could rent religious facilities for school events.
But Luchenitser of American United said the chances of the Supreme Court taking the case were "very small." Usually the high court only takes a case if two or more Circuit Courts of Appeal express different views on the same issue, he said, and the Elmbrook case was the only such ruling.
"We think it’s very unlikely that the Supreme Court will take the case," Luchenitser said. "If it does take the case, we feel good about our chances of prevailing, and while we understand that the school district has the right to pursue this appeal, we think it’s not a wise use of the resources and time of the school district."
The School Board capped the amount the district will spend on the litigation at $15,000, but it likely will not have to pay that given the pro bono work. The district did have to pay a $5,000 insurance deductible.
Who Elmbrook hired
The Becket Fund for Religious Liberty says its goal is "to change American law so that the vast majority of courts and the public accept religious activity as a natural part of public discourse in the United States."
The non-profit, public interest law firm says it's "dedicated to protecting the free expression of all religious traditions — from Anglicans to Zoroastrians."
Michael McConnell, who will serve as the lead attorney, is a professor and director of the Constitutional Law Center at Stanford Law School and co-editor of "Christian Perspectives on Legal Thought." A former 10th Circuit Court of Appeals judge, McConnell has argued 13 cases before the Supreme Court.
Kirkland & Ellis' Washington D.C.-based attorneys also have experience with the Supreme Court.
If the Supreme Court grants Elmbrook's request for an extension, an appeal would be due by Dec. 21. The court could take several weeks to announce whether it would hear the case.