Updated (2:40 p.m) A federal appeals court has upheld the Elmbrook School District's right to hold its graduation ceremonies in a church, ruling the move does not equate to government-coerced religion.
A three-member panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled 2-1 in a 54-page decision Friday that the ceremonies did not violate separation of church and state.
"The District’s use of the rented church space was neither impermissibly coercive nor an endorsement of religion on the part of the District," the majority wrote.
Alex Luchenitser, senior litigation counsel for Americans United for Separation of Church and State, which represented students and parents opposed to the church venue, said the group will petition the full appellate court to reconsider the decision.
He said it was the first federal appellate ruling on the issue of holding public school graduations in religious venues.
"We're quite disappointed in the court's decision," Luchenitser said. "We think that holding a public high school graduation in an intensely religious environment underneath a giant cross is violation of the U.S. Constitution and the separation of the church and state."
Elmbrook Superintendent Matt Gibson said he was pleased with the decision, calling it a "very thoughtful decision" that thoroughly covered the issues in the majority and dissenting opinions.
Elmbrook's two high schools, and , from 2002 to 2009 held their graduations at , a nondenominational Christian church in the Town of Brookfield, because the megachurch's facility was larger than either high school's gyms. Central also at times used the church's facilities for its seniors recognition night event.
After renovating and expanding the high schools, Elmbrook moved its graduation ceremonies back to the school, holding both in Brookfield East's new field house.
The district said it held its ceremonies at Elmbrook Church for comfort and space, after students and parents preferred the church's air conditioning and large seating. But a group of students and their parents — who were anonymous in a lawsuit — objected in 2009 to graduation being held in a facility with religious symbols, crosses, pamphlets and other evangelical information.
A large cross hangs above the church dais where the ceremony is held and the church rejected a district request to cover the cross for the event, the court decision said.
The families sought to block the 2009 ceremony from being held at Elmbrook, but U.S. District Judge Charles Clevert in Milwaukee rejected the request and ultimately ruled the district was legally permitted to hold its ceremony in a church.
The Americans United for Separation of Church and State appealed to the 7th Circuit Appeals Court, a panel of which upheld Clevert's decision Friday.
"Graduates are not forced — even subtly — to participate in any religious exercise," the majority wrote. "They are not forced to take religious pamphlets, to sit through attempts at proselytization directed by the state or to affirm or appear to affirm their belief in any of the principles adhered to by the church or its members. Instead, the encounter with religion here is purely passive and incidental to attendance at an entirely secular ceremony."
The decision added the rental fee Elmbrook paid the church did not represent an endorsement of religion because the church's fee was in line with other area rental fees.
In a dissent, Judge Joel M. Flaum wrote, "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."
Flaum said the venue choice "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."
Luchenitser said three of the four families represented in the litigation still have children at the high schools and are concerned that the Elmbrook School District may at any time decide to return to holding graduation at Elmbrook Church.
He said some have complained the bleacher seating at Brookfield East's new field house isn't as comfortable as the church venue.