The Elmbrook School Board will ask the U.S. Supreme Court to rule on the lawsuit over whether the district violated the U.S. Constitution by holding graduation ceremonies at Elmbrook Church.

In a 5-2 vote on Tuesday, at a meeting at which only one member of the public showed up to express an opinion on the issue, the School Board opted to appeal the July federal appellate court decision that found the district had violated the First Amendment when it held previous graduation ceremonies in the church.

Board members Glen Allgaier, Richard Brunner, Jean Lambert, Meg Wartman, and Tom Gehl voted for the appeal. Board members Kathryn Wilson and Robert Ziegler voted against it.

The district will now evaluate offers from law firms, looking for firms with previous expertise appearing before the nation's highest court. The U.S. Supreme Court will probably decide whether to hear the case in 12 to 18 months, school officials said.

“We did not want this fight. We did not seek this fight. But we are prepared to proceed with the appeal,” said Gehl, who is board president.

District's Costs Capped at $15,000

The district doesn’t expect its costs to exceed $15,000. That’s because several law firms have volunteered to continue the case pro bono. Indeed, the approved motion included language limiting the district's cost in the appeal to that figure.

In its ruling, the court said it was not broadly rejecting governmental use of church spaces, citing legal precedent for churches to be used as polling sites. But it said in this case Elmbrook Church's cross and other religious materials in the presence of the public school graduation ceremony violated the Constitution.

Elmbrook officials have been meeting with their attorney since the July 23 ruling and are considering whether to appeal the case to the U.S. Supreme Court.

'Not a Matter of Religion or Creed'

Board members, in sometimes emotional speeches, said even though the issue is now moot for the district, the policy question has national implications. However, the two dissenting board members said they didn’t think the appeal was likely to prevail.

Gehl said he and his wife belong to Elmbrook Church. In a passionate speech, Gehl said he supported continuing the appeal. He stressed that he did not doubt the “sincerity” of the plaintiffs who had brought the lawsuit, but  believed it was important for the district to move forward.

“I can look any resident in the eye with comfort and truth and say that the board has evaluated every angle,” Gehl said.

He pointed out that district students originally chose Elmbrook Church as a site for graduation ceremonies back in 1999. “It was not chosen by the board,” he said.

For years, the practice continued. Graduation ceremonies are now held at the Brookfield East High School, however, and the board members said there are no plans to ever move them back to Elmbrook Church now that the district has adequate facilities of its own.

“Members of the board take an oath upon the Constitution, and they take it very seriously,” Gehl said.

He said he believed not appealing the decision would have been tantamount to a statement that students, prior board members, teaching staff, administrators, and community members were in violation of the Constitution. That, he said, he could not do.

“This is not a matter of religion or creed,” Gehl said. He couched his support for an appeal in the 10^th Amendment, and said that it was a “matter of political freedom” — of local people and entities being able to make choices and “not have them overturned by the litigious efforts of an outside entity.”

Allgaier said he had wrestled with the issue.

“There are arguments from very intelligent judges on both sides,” he said. Ultimately, he decided to support the appeal because “the ramifications are much broader than our own district. I feel it is important to go to the final court of the land. This has far reaching consequences, and I would like to see it resolved.”

Lambert noted that “a number of qualified law firms have come forward to appeal this at no cost.” She said that she felt the dissenting judges in the federal appellate court decision “make very compelling arguments against the majority opinion.”

Can District Win This Case?

However, Wilson said she did not see far-reaching ramifications nationally or for Elmbrook. “I don’t see us winning this appeal,” she added.

And Ziegler, the other dissenter, encouraged those interested in the topic to read the actual decision. He pointed out that the federal appeals court that ruled 7-3 in July against the district was packed with Republican appointees.

He said there was a “basis” for that decision.

“I think this court was more favorable than the Supreme Court will be,” Ziegler said.

He also noted that “this issue is moot” because the district is holding all graduation ceremonies now at Brookfield East anyway.

However, Superintendent Mark Hansen urged the board to appeal.

“The fiscal risk is below $15,000. The potential public policy here is important. We support the appeal because that point needs clarity from the Supreme Court," he said.

In April 2009, Americans United for Separation of Church and State, filed the lawsuit in federal court on behalf of nine anonymous Elmbrook families claiming the district violated the Constitution.

In July 2010, a federal court granted the school district's motion for summary judgment and dismissed the case. In September 2011, a three-judge federal panel upheld that court's ruling, however, Americans United asked the full 7th Circuit Court of Appeals to hear the case, which ultimately resulted in the July ruling against the district.