Plaintiffs ask for en banc review on constitutionality of graduations at church 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 10, 2011 – Plaintiffs have asked the U.S. Court of Appeals for the Seventh Circuit to reconsider whether a public school district violates the U.S. Constitution by holding high school graduation ceremonies in a church.

Last month, a three-judge appeals panel ruled 2-1 that the Elmbrook School District did not infringe the Establishment Clause of the First Amendment by permitting two high schools – Brookfield Central and Brookfield East – to hold graduation ceremonies at Elmbrook Church.

The Establishment Clause prohibits the government, here a public school district, from imposing religion on the public. It recognizes a separation of church and state.

Parents, students, and former graduates who objected to the church venue sought damages for past harm and a permanent injunction, although the two high schools stopped using the church for graduations when a new field house was completed in 2010.

Now, the anonymous plaintiffs want the court to review the case en banc. Americans United has filed a petition for review on their behalf to overturn John Doe et. al. v. Elmbrook School District, No. 10-2922 (Sept. 9, 2011).

In the petition, Americans United counsel Alex Luchenitser said the “panel’s opinion is the first federal appellate decision on the constitutionality of the practice” and will “likely be quite influential.” Thus, the plaintiffs are asking for a full review and a reversal.

Two of three appeals panel judges concluded that the school district’s use of the rented church space was neither “impermissibly coercive nor an endorsement of religion."

The plaintiffs argue the district’s practice “coercively imposes religion upon students and parents, for they must spend hours in the Church’s religious environment, watching their graduation ceremony take place beneath an immense Christian cross. …”