Wis. School District Appeals Church-State Case to Supreme Court

Correction Appended

A Wisconsin school district that lost a case regarding whether it violated the Establishment Clause by holding graduations at a nearby church is filing an appeal to the United States Supreme Court.

Elmbrook School District announced Tuesday the attorneys it has retained to represent them in the appeal case regarding a suit brought by some parents who took issue with the District's former usage of a church for high school graduation ceremonies.

Kristi Foy, Staff Attorney and Director of Human Resources for the School District of Elmbrook, told The Christian Post that while the School District has not used the church facility since 2010, the broader implications of the case lead them to appeal.

"Given the public policy implications of the 7th Circuit Court's ruling, the Board of Education is seeking clarity from the United States Supreme Court as to whether or not public entities may use religious facilities for events," said Foy.

In 2009, some parents sued Elmbrook Schools because two high schools in the district were holding their graduation ceremonies at a local church. Americans United for Separation of Church and State represented the parents in Court.

U.S. District Judge Charles N. Clevert Jr. heard the case and ruled in favor of Elmbrook Schools. From there a three-judge panel of the Seventh Circuit ruled likewise in 2011. In July, the full court of the Seventh Circuit ruled against Elmbrook.

Alex Luchenitser, associate legal director for Americans United, told The Christian Post that while the Supreme Court has yet to take a case akin to Elmbrook, the likelihood of them doing so was "quite small."

"Ordinarily, the Supreme Court only takes a case when two or more federal appellate courts have come to different conclusions on an issue," said Luchenitser, who noted that the Seventh Circuit is the only federal appellate court to make a decision on this matter.

"Thus, there is no conflict among federal appellate circuits, and it would be premature for the Supreme Court to consider this issue."

"The school district certainly has a right to ask the Supreme Court to take the case. We do not think that petitioning the Supreme Court is a good use of the school district's time and resources, however," said Luchenitser.

Regarding the time and resources of dealing with a Supreme Court level case, Foy told CP that the School District had received many offers of assistance from other parties.

"The District has received several offers of pro bono assistance with the appeal, thereby minimizing the amount of time, energy, and money the District will expend on this matter," said Foy.

One organization, the Alliance Defending Freedom (ADF), filed an amicus brief on behalf of Elmbrook when it was before the Seventh Circuit. David Cortman, Senior Counsel for ADF, told The Christian Post that the ADF intends to file another amicus brief should the case be brought before the Supreme Court.

"We agree with the district's decision to file a cert petition because this case involves important issues that need to be resolved. And it is not solely about whether it is constitutional for a school district to hold a graduation ceremony in a church," said Cortman.

"It also raises the issue of with whether an 'offended observer' has standing to sue in the first instance, and whether merely viewing a religious symbol in certain contexts rises to the level of a constitutional crisis."

Cortman also told CP that while there were no cases to his knowledge like this one that had been brought before the Supreme Court, similar issues had already been decided by the highest court that would benefit Elmbrook.

Correction:  Thursday, October 4, 2012: 

An article on Thursday, Oct. 4, 2012, about a Wisconsin school district appealing a church-state case to the Supreme Court incorrectly reported that the school district has filed the appeal on Tuesday.  The school district has announced the names of the attorneys it has retained to appeal the case on Tuesday, but has not filed yet.