The Supreme Court Denied Cert In Elmbrook . . . Now, What? Alliance of Public Charter School Attorneys Fall 2014 Legal Seminar September 11, 2014
Accessing Facilities Owned and Operated By Religious Organizations Post- Elmbrook Session Objectives Provide overview of Elmbrook decisions and most recent Supreme Court action Explain the connection between Elmbrook and charter schools Highlight the legal challenges associated with locating a charter school in a facility owned or operated by a religious organization Discuss how to be proactive and offer useful advice to clients who decide to locate in a religious owned or operated facility Explore how your advice and strategies might vary depending upon the specific laws and regulatory environment in your state 2
Doe, et al. v. Elmbrook School District – The Facts What Happened? Student representatives of the senior class from two local high schools petitioned the district to hold graduation at a Christian, evangelical and non-denominational religious institution in the community. In the past, graduation had been held in school gymnasiums that were smaller and had no air conditioning. The initial request for an alternative location led to a practice of allowing the senior class to vote among a set of alternate sites, including the church. The church “invariably emerged as the overwhelming favorite.” After several years of voting, the district simply began selecting the church as the venue for high school graduation. Graduation was held at the church from about 2000 to 2009. 3
Doe, et al. v. Elmbrook School District – The Facts What Happened? The District received complaints from some students and parents. It also heard objections to the decision to hold the graduations at the church from the Freedom from Religion Foundation, the ACLU of Wisconsin, the Anti-Defamation League and the Americans United for Separation of Church and State. Ultimately, the District and the various organizations that raised questions about the constitutionality of the practice were unable to resolve their differences. Although the District moved graduation to a new site it built in 2010, opponents decided to sue, in part because the District refused to state that it would never again hold a graduation in the church. A group of current and former students of the District schools and their parents filed a lawsuit challenging the District’s practice of holding high school graduation at Elmbrook Church. 4
Doe, et al. v. Elmbrook School District – The Facts Who Paid the Cost of Renting the Church? The senior class for each school raised money to pay a portion of the church rental fee, but the District covered the rest. What Did the Church Look Like? The church looks like a traditional Christian church with all the religious symbols, Bibles and other materials, which were not removed for the graduation ceremonies. As you might find in other churches, evangelical literature was present and made available to guests during the ceremonies and in some instances, church members “manned information booths” during at least one ceremony and circulated the literature. When asked to remove a large cross attached to the wall in the sanctuary, the Church refused and indicated it had a general policy against covering its permanent religious displays. It agreed to remove non-permanent religious symbols from dais. 5
The First Amendment Establishment Clause The Lemon Test and Its Progeny Establishment Clause Tests Coercion Lemon Test Test Traditional Endorsement Lemon Test Test 6
Tests Generally Applied Pre- Elmbroo k Traditional •Does a particular government action that bears on religion: Lemon Test • reflect a clearly secular purpose; • advance or inhibit religion as its primary effect Asks: • avoid excessive government entanglement with religion. Endorsement • Does the challenged government practice have the effect of communicating a message of government endorsement or Test Asks: disapproval of religion? Coercion Test •Does the action in question have the power to force an individual to give up certain rights or benefits as a price for not Asks: conforming to a religious practice endorsed or established by the state? 7
Doe, et al. v. Elmbrook School District – The 7 th Circuit Decisions – Three Judge Panel The Panel Decision The panel applied generally accepted First Amendment precedent and concluded that the District’s decision to use the Church for graduation did not have the effect of endorsing religion and did not violate any of the tests set forth by the Supreme Court. Specifically, it determined that “the history and context of the community and the forum reflect that secular concerns directed the move away from school facilities toward an adequate, convenient, cost-effective graduation venue.” 8
Doe, et al. v. Elmbrook School District – The 7 th Circuit Decisions – En Banc Court En Banc the court concluded that: The presence of minors at the graduation ceremony, a “proselytizing environment” in the church, and the “sheer religiosity” of the space in light of the large Latin cross in the sanctuary, pews and hallways that contained written religious materials and religious iconography in the building compelled a finding that that the use of the Elmbrook Church for graduation had the effect of advancing religion and “necessarily convey[ed] a message of endorsement.” Therefore, the District violated the First Amendment Establishment Clause The school district’s stated secular reasons for choosing the church site was outweighed by the “sheer religiosity of the space.” The Court focused on the “pervasively religious environment” that existed at graduation and the impact it had on students who attended the graduation ceremonies Application of the coercion test demonstrates that the students at the graduation ceremony were a “captive audience” who could reasonably conclude that the District approved the Church’s message 9
Elmbrook School District v. Doe 3, et al. – Supreme Court Decision The Supreme Court denied cert in a summary order and Justice Scalia dissented from the denial of cert. Justice Thomas joined the written opinion The Justices contend that the Court abandoned the endorsement test in another Supreme Court Establishment Court decision this year, Town of Greece v. Galloway, 134 S. Ct. 1811 (2014)(upheld practice of opening town board meetings with prayer). Therefore, the Seventh Circuit’s reliance on the endorsement test and suggestion that it remains a part of ‘the prevailing analytical tool’ for assessing Establishment Clause challenges, is a misstatement of the law The Justices also take issue with the Seventh Circuit’s coercion analysis. They disagree with the en banc court’s distinction of Supreme Court precedent that would actually require students to participate in religious exercise or activity. Here, the Justices argue, plaintiffs merely took offense that the graduation was held at the church. No District sponsored religious exercise occurred. Therefore, there is no Establishment Clause violation To be cognizable in the Establishment Clause framework, coercion requires application of the force of law and threat of penalty The Justices note the importance of interpreting the Establishment Clause “by reference to historical practices and understandings” which is a significant part of the holding in the Supreme Court’s most recent Establishment Clause opinion Town of Greece . 10
New Standards Created By Elmbrook Establishment Clause Lemon Test Test Endorsement Test Coercion " Captive Audience" Standard " Pervasively Religious" Standard Is the audience of young, Does the "sheer religiosity" of the impressionable people who are space suggest endorsement required to be in the space? 11
Now, What? The Seventh Circuit Decision stands as the law of the land. So, what’s the impact? The court itself stressed the limited scope of its opinion. “The ruling should not be construed as a broad statement about the propriety of governmental use of church-owned facilities.” It specifically notes that the opinion should not “be read as critical of cases permitting governmental use, in the proper context, of certain church-owned facilities” As an example, the court specifically references Porta v. Klagholz, 19 F. Supp.2d 290 (D. N.J. 1998), which involved a charter school’s use of space on church premises. The New Jersey district court held that there was no religious iconography present in the areas used by the school so there was no Establishment clause violation 12
Now, What? Any court that hears a case like Porta, challenging a charter school’s use of a church-owned facility, will interpret the Establishment Clause, apply legal precedent and make a fact-based, determination. Every situation will be handled on a case by case basis Those of you in Illinois, Indiana and Wisconsin can look forward to district courts applying the new standards announced in Elmbrook In other states, there is no guarantee they won’t apply Elmbrook , but no requirement that they do so either In light of Town of Greece and the dissent in Elmbrook , which amplifies the Court’s discussion of the endorsement test, a court may decide that the endorsement test is off the table 13
Now, What? The Ultimate Result for Your Charter School Clients? 14
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