As public high schools around the country make their final plans in coming weeks for spring graduation ceremonies, a case the Supreme Court has been pondering might have an influence on the place they choose for handing out diplomas. It is said to be a fairly common practice to hold such ceremonies in churches. That may, or may not, be a constitutional problem.
For decades, the Supreme Court has held the view that mixing religion and public education in grade schools and high schools is potentially a violation of the First Amendment’s ban on government endorsement or promotion of religion. But the justices have been most troubled by the perceived effect on young minds of religious practices, such as prayer or devotional services, especially if those are the expressions of a particular faith. The justices have been more ambiguous in their reaction to displays on government property of religious messages, such as the Ten Commandments.
The new case takes the justices to a different level. The question in the new case is whether exposure to religious symbolism in a private setting, with no attempt of any kind to provide religious teaching as such, is enough to make the very scene unconstitutional. An answer may not be easy.
In Brookfield, Wisconsin, a western suburb of Milwaukee, two local high schools for years staged their graduation exercises in the sanctuary of Elmbrook Church, an evangelical congregation that is not affiliated with any denomination. The practice began in 2000 with a choice by one of the high schools, at the request of the graduating class to move the ceremony out of the school’s gym.
The gym, the students said, was too hot, too cramped, and made everybody uncomfortable by having to sit in the bleachers. The church charged $2,200 in rent, and the students raised some of that money through events; the school paid the remainder. The school district’s other high school chose the same site two years later for its graduation ceremonies.
The Elmbrook Church sanctuary was dominated by a large Latin cross of the Christian faith, and a number of religious banners were clearly visible. The students and families sat in pews, with Bibles, hymnals, and religious literature in front of their seats. School officials asked the church leaders to take down the banners, but they refused, and the ceremonies went ahead anyway.
The church’s leaders and its congregation had no role in the graduation celebration, and there was no one on hand to offer any kind of religious counseling.
For nine individuals, present and former students and their parents, the site itself was the problem, with its obvious religious symbolism and significance. They said the exposure to such artifacts of faith offended them, and compromised the experience of graduating. A federal judge rejected their challenge, concluding that the site was chosen entirely for non-religious purposes, and the ceremonies had gone off with no attempt to teach any aspect of the congregation’s faith.
While the case was moving up through the courts, the school district built a new, larger gymnasium, and ceremonies were then transferred there. The lawsuit, however, continued as the challengers took the case on to the Seventh U.S. Circuit Court of Appeals, based in Chicago.
A three-judge panel of that court agreed with the trial judge, finding no First Amendment religion problem. But the full circuit court reconsidered. Splitting 7-3, that court found that the Elmbrook Church site, arrayed as it was, could not avoid being coercive of the students and their younger brothers and sisters attending the ceremony.
“The difference,” the majority said, “is one of degree, not kind. ... Here, the involvement of minors, the significance of the graduation ceremony, and the conditions of extensive proselytization prove too much for the District’s actions to withstand the strictures of the [First Amendment’s] Establishment Clause. ... The atmosphere of the Church, both inside and outside the sanctuary, is indisputably and emphatically Christian.”
The majority sought to stress that it was ruling as narrowly as it could, confined to the specifics of the Elmbrook Church’s physical adornments and the display of its religious literature. It insisted that it was not ruling out all governmental use of religious facilities for public purposes.
The dissenters argued that the majority had stretched prior Supreme Court rulings—forbidding organized prayers by religious leaders at public school graduations, and forbidding student-led prayers at public school sporting events—far beyond their actual scope. Those practices failed in the Supreme Court, one of the dissenting judges wrote, because they involved “governmental sponsorship, endorsement, or coercion,” but there was no evidence of that in the Brookville ceremonies. That judge said the ruling “creates a new and dangerous principle.”
All of the judges who wrote opinions in the case did so at great length, apparently in the expectation that the case would go on to the Supreme Court—as, indeed, it has. The school district officials contended that the decision, if allowed to stand, “would unsettle long-standing practices in public schools across the country.”
The justices have now examined the case twice during private meetings, but have yet to take any action on it. If a majority concludes that the circuit court ruling strays so far from what the Supreme Court precedents required, it is conceivable that the lower court decision could be overturned without the justices even holding a hearing or getting full written legal arguments. If the court opted instead to review the decision, it could be setting the stage for a major new pronouncement on when faith and public education can coexist.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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