When news broke that a federal appeals court had ruled against public school graduation ceremonies in a Wisconsin church, lawsuit plaintiff Ashley Dunbar was filled with happiness and relief.
Said Dunbar, “It means that I will not have to see another of my children graduate high school in a church under a large cross.”
Dunbar – not the plaintiff’s real name – was one of nine anonymous non-Christian students, parents and graduates who challenged the Elmbrook School District’s practice of holding high school commencements at Elmbrook Church.
Represented by Americans United for Separation of Church and State, they argued that forcing children to go into a pervasively religious institution – of a faith to which they don’t subscribe – to get their diplomas violated their religious liberty rights.
On July 23, the 7th U.S. Circuit Court of Appeals agreed.
Writing for the 7-3 majority, Judge Joel M. Flaum said, “Our conclusion is that the public school graduation ceremonies at issue, which took place in the sanctuary of a non-denominational Christian church, violated the Constitution…. Here, the involvement of minors, the significance of the graduation ceremony, and the conditions of extensive proselytization prove too much for the [School] District’s actions to withstand the strictures of the Establishment Clause.”
The decision was an extraordinary victory for the dissenting families, Americans United and church-state separation.
A federal district court had ruled in favor of the school district, and a three-judge panel of the 7th Circuit had done so as well. Americans United attorneys, however, were determined not to let those losses deny justice to the families involved. They asked the full 7th Circuit bench to rule on the Doe 3 ex rel. Doe 2 v. Elmbrook School District case.
The subsequent en banc decision was a sweeping win for secular public schooling and First Amendment principles.
In his majority opinion, Judge Flaum found that holding a public school commencement in the Elmbrook Church sanctuary conveyed “an impermissible message of endorsement” of religion and was “religiously coercive.”
Flaum, who was appointed by President Ronald W. Reagan, noted that the church facility not only featured an auditorium with a 20-foot-tall cross hanging over it, but also included religious materials aimed at students and adults. Pews were festooned with Bibles, hymnals and “scribble cards” on which “God’s Little Lambs” could draw.
“Put simply,” wrote Flaum, “the environment was pervasively Christian, obviously aimed at nurturing Christian beliefs and gaining new adherents among those who set foot inside the church.”
Dunbar and the other plaintiffs were elated with the court’s action.
“It is a matter of minority rights, as embodied in the Constitution,” said Dunbar. “In this case those of the majority religion saw nothing wrong with imposing their will on everyone attending graduation.
“Over and over, it was stated that ‘it’s just a church’ and ‘the graduation itself isn’t religious’ – yet the setting infused the ceremony with the trappings of Christianity, despite the existence of graduates and families from the Muslim, Jewish, Humanist and Atheist traditions,” Dunbar continued. “Public schools must avoid showing preference for any religion – whether through graduation exercises, holiday assemblies or other activities – in order to maintain equality. Public schools need to focus on education, not religious indoctrination.”
Elmbrook Church was particularly unwelcoming to the plaintiffs because of its reputation in the community. An evangelical mega-church in a Milwaukee suburb, the congregation makes clear its conservative theological stance.
The church condemns atheists as people “who think they are smarter than God.” It refers to homosexuality as “not an acceptable lifestyle” and “contrary to God’s will.” The church website even chastises TV talk show host Oprah Winfrey for promoting “a spirituality that is at fundamental odds with the historic biblical faith.”
Said Dunbar, “Having attended graduation in the church, I was uncomfortable with the manner in which the religious nature of the church was so strongly displayed to the attendees, many of whom fully understood the church’s doctrine and knew they were looked down upon by the church members.”
Other plaintiffs were also thrilled with the outcome of the case.
Said Casey Albright, an Elmbrook graduate, “What this means is that we were able to defend the separation of church and state and this country’s Constitution single-handedly. We knew what the Christian majority was doing in Brookfield was wrong. No child should feel ganged up on when it comes to religion.”
Added Albright, “It makes me happy to know that due to this decision, other high schools in Wisconsin, and quite possibly the entire country, will think twice before attempting to mix religion with public life.”
Chris Albright, Casey’s parent, agreed.
“This decision will put school districts across the country on notice,” said Chris, “that forcing people to choose between sitting in a church for several hours or missing a once-in-a-lifetime high school commencement is not only rude but unconstitutional. I believe the plaintiffs – with AU’s expert legal representation – have accomplished something of historic importance.”
Alex J. Luchenitser, Americans United’s associate legal director, who argued the case, was pleased with the court decision as well.
“It is absolutely wrong,” he said, “to subject public school students to an intensely religious environment as the price of attending their own graduations.”
In addition to Luchenitser, others involved in the litigation included AU Legal Director Ayesha N. Khan and former AU fellowship attorneys Elizabeth Stevens, Josef Klazen and Robert Shapiro. James H. Hall Jr. and F. Thomas Olson of the Milwaukee civil rights firm Hall Legal, S.C. served as co-counsel.
The Elmbrook decision was not Americans United’s only win on this issue in July. On July 19, the Enfield, Conn., Board of Education agreed to settle a similar lawsuit there, promising not to hold graduations in a Bloomfield church.
That legal challenge was filed by Americans United, the American Civil Liberties Union and the ACLU of Connecticut. The three organizations represented three students and four parents – all anonymous – who objected to holding the graduations of Enfield and Fermi high schools at First Cathedral in Bloomfield.
From 2007 through 2009, commencements took place in the church sanctuary, underneath a 25-foot-tall stained-glass cross and large banners reading “Jesus Christ is Lord” and “I am GOD.” The sectarian site was chosen even though more than a dozen non-religious sites were available.
On May 31, 2010, a federal court ruled that holding graduation ceremonies at the church is unconstitutional. U.S. District Judge Janet Hall said the action violated the First Amendment and sent the message to students that the schools favor religion over non-religion and one religious belief over others.
The settlement in Does v. Enfield Public Schools brings the case to a close.
Plaintiff Kerry Whittle – a pseudonym – is relieved the whole thing is over and “that the right thing was done.”
Said Whittle, “The writers of the Constitution recognized the importance of not having an established religion, yet too many in America talk of it being a ‘Christian society’ and a ‘Christian community.’ The freedom to worship as you please is so crucial to a free society.
“I do believe,” Whittle continued, “that public schools have a responsibility to do things right, to set the standard for and teach by example what the principles of our country are about, and that means avoiding any entanglement with religion.
“I am glad we participated in this suit,” Whittle concluded. “I’m glad that my children had a chance to do so and to see that it can be done. And I’m proud that because we fought this battle that others may not have to do so in the future.”
The Connecticut case was also litigated by Luchenitser, along with AU Legal Director Khan, Shapiro, former AU legal fellow Devin Cain, the ACLU of Connecticut’s Legal Director Sandra Staub and Staff Attorney David McGuire, and Dan Mach of the ACLU’s national office.
Americans United Executive Director Barry W. Lynn said the positive outcomes of the Wisconsin and Connecticut cases are extremely important.
“Public schools serve an incredibly diverse population,” said Lynn. “It is vitally important for our schools to make all students feel welcome, regardless of their views about religion.
“Graduation is a milestone in all students’ lives,” he continued. “It ought to take place in a venue where no one feels like a second-class citizen.”