Law & School: When it isn’t okay to have your high school graduation at church

August 1, 2012

School Law(Editor’s note: With August being the “back to school” month for everyone from preschoolers to law students, we’ll be looking at recent important developments in education law throughout the month.)

Although the next school year is starting soon, the last school year ended just a couple of months ago.

And many students ended their school year (if they were fortunate enough) with a graduation ceremony.

While some graduation ceremonies see their share of drama, almost none of them rise to the level of a federal lawsuit.

Almost none.

The full panel of judges in the U.S. Seventh Circuit Court of Appeals ruled last week in a case arising out of a high school graduation ceremony.

Actually, it was all of the graduation ceremonies for Brookfield Central High School (in a suburb of Milwaukee, Wisconsin) from 2000 until 2009 and all those for Brookfield East from 2002 until 2009.

What was the problem?

The ceremonies took place in the main sanctuary of the evangelical Christian Elmbrook Church.

Of course, many of you First Amendment buffs will quickly (and correctly) point out that the Supreme Court’s rather convoluted Establishment Clause jurisprudence doesn’t prohibit school use of church premises per se.

Perhaps most prominent in this jurisprudence is the Lemon test established in 1971’s Lemon v. Kurtzman.

This test finds that a governmental practice violates the Establishment Clause if it (1) lacks a legitimate secular purpose; (2) has the primary effect of advancing or inhibiting religion; or (3) fosters an excessive entanglement with religion.

Also used is the “coercion test” as established by 1992’s Lee v. Weisman and 2000’s Santa Fe Independent School District v. Doe that finds a First Amendment violation when the state applies “coercive pressure on an individual to support or participate in religion.”

Considering that the church venue was selected because school facilities were no longer adequate for the ceremonies, and that the school’s relationship with the church only went as far as that of a lessee and lessor, a court would be hard-pressed to find a violation here (in spite of the fact that the district superintendent is a member of the church).

This isn’t the whole story, though.

In the sanctuary where the ceremonies were held, a 15- to 20-foot Latin cross was prominently displayed over the dais – which the church refused to remove or cover up during the ceremonies.

According to the en banc opinion, in order to get to 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.”

This 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.”

Not enough “advancing” of “religion” for you?

Church members manned information booths during the graduation ceremonies and passed out this literature in the lobby to attendees.

Need a little “excessive entanglement?”

During at least one ceremony, “members of the church, instead of school officials, handed out graduation materials during the ceremony.”

There are a few more examples I could cite from the opinion, but you probably get the idea.

The three (out of eleven) dissenting judges – Judges Posner, Easterbrook, and Ripple – cited a litany of unintended consequences that this ruling will yield, such as barring the government from endorsing the eating of beef (presumably because doing so under this opinion would be tantamount to government disapproval of Hinduism).

The dissenters must have missed the part of the majority opinion that explicitly declared the ruling to be fact-sensitive, just as Justice O’Connor’s concurrence in Lee stated that it should.

In other words, the majority declined to establish any bright-line rules under the Establishment Clause and plainly asserted as much.

It just ruled that, in this one particular circumstance, there was a First Amendment violation.

That means that the ruling isn’t meant as a warning to other schools to avoid renting religious facilities for school events.

It just reiterated what the Supreme Court has said on numerous occasions:

Don’t let the religion actively or passively proselytize at these events.