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
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Provide overview of Elmbrook decisions and most recent Supreme
Court action
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Explain the connection between Elmbrook and charter schools
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Highlight the legal challenges associated with locating a charter
school in a facility owned or operated by a religious organization
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Discuss how to be proactive and offer useful advice to clients who
decide to locate in a religious owned or operated facility
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Explore how your advice and strategies might vary depending upon
the specific laws and regulatory environment in your state
Doe, et al. v. Elmbrook School District – The
Facts
What Happened?
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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.
Doe, et al. v. Elmbrook School District – The
Facts
What Happened?
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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.
Doe, et al. v. Elmbrook School District – The
Facts
Who Paid the Cost of Renting the Church?
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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?
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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.
The First Amendment Establishment Clause
The Lemon Test and Its Progeny
Establishment Clause Tests
Lemon Test
Traditional
Lemon Test
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Endorsement
Test
Coercion
Test
Tests Generally Applied Pre-Elmbrook
Traditional
Lemon Test
Asks:
•Does a particular government action that bears on religion:
• reflect a clearly secular purpose;
• advance or inhibit religion as its primary effect
• avoid excessive government entanglement with religion.
Endorsement
Test Asks:
• Does the challenged government practice have the effect of
communicating a message of government endorsement or
disapproval of religion?
Coercion Test
Asks:
•Does the action in question have the power to force an
individual to give up certain rights or benefits as a price for not
conforming to a religious practice endorsed or established by
the state?
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Doe, et al. v. Elmbrook School District –
The 7th Circuit Decisions – Three Judge Panel
The Panel Decision
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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.”
Doe, et al. v. Elmbrook School District –
The 7th Circuit Decisions – En Banc Court
En Banc the court concluded that:
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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
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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
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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
Elmbrook School District v. Doe 3, et al. –
Supreme Court Decision
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The Supreme Court denied cert in a summary order and Justice Scalia dissented from the denial of
cert. Justice Thomas joined the written opinion
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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
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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
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To be cognizable in the Establishment Clause framework, coercion requires application of the
force of law and threat of penalty
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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.
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New Standards Created By Elmbrook
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Lemon Test
Establishment Clause
Test
Endorsement Test
Coercion
"Pervasively Religious" Standard
"Captive Audience" Standard
Does the "sheer religiosity" of the
space suggest endorsement
Is the audience of young,
impressionable people who are
required to be in the space?
Now, What?
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The Seventh Circuit Decision stands as the law of the
land. So, what’s the impact?
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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
Now, What?
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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
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Now, What?
The Ultimate Result for Your
Charter School Clients?
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Why Do We Care?
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Facilities, Facilities, Facilities
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We Need All The Facilities We Can Access
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Access to facilities continues to be one of the most
significant issues cited as a barrier to growth and a
contributor to the funding gap between charters and
other schools
Charter operators need to preserve option to access
facilities and school buildings owned and/or operated by
religious organizations
Charter schools are being watched . . . closely by
organizations that initiate Establishment Clause and
church/state separate challenges
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Why Do We Care?
Elmbrook provides a roadmap to potential litigants concerned about the
separation of church and state and the proliferation “religious charter
schools”
 The Seventh Circuit opinion specifically calls out charter schools (Porta)
and leasehold arrangements between schools and religious
organizations
 The majority suggests that it would be overly formalistic to allow a
school to create a “pervasively religious environment in the classroom”
or “at an event it hosts” by acting “through a short-term lease” when we
know the constitution forbids schools from doing so directly.
 In the dissenting opinions, judges question other school uses of religious
owned facilities:
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“Will public high school athletic teams be permitted to enter ‘pervasively religious’ schools
for interscholastic academic or athletic activities? . . . [W]ill the students from Christian
schools be asked to refrain from raising their banners that contain a school coat of arms
with the cross predominately displayed”
This is not the case where “a public school district, pleading poverty, sells its schools and
rents a church building to hold classes; again the appearance of endorsement would be
inescapable. The difference between a public school’s using a church two or three hours a
year and a its using a it a thousand-odd hours a year is one of degree rather than kind, but
differences of degree are inescapable grounds of legal distinctions. . . “
What Can We Do?
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There is no reason to stop using these types of
buildings
Be proactive – advise clients of the legal issues and
risks associated with use of a religious owned or
operated facility
Three guiding principles:
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School is non-religious in all respects
Religious organization landlord may not exercise any
control over what is taught or displayed in the school
Ask the right questions before you execute a contract
What Can We Do?
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What are the right questions to ask?
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Have you established a typical, commercial relationship
with the landlord/religious organization?
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Does the relationship suggest public endorsement of
religion in any way?
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Can you show that your choice is driven by a secular purpose?
Is it a typical landlord/tenant relationship?
Is the lease a typical with ordinary terms?
Does the building/facility itself create a “pervasively
religious environment”?
Does the relationship create a coercive environment for
students and families who attend the school?
What Can We Do?
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The questions you ask and answers you receive will
depend on two things:
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Nature of the proposed facility use
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lease/sublease of entire building or co-location
temporary use or rental of space for an event
purchase of facility
Law of the state where the charter school is located
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What tests are used to interpret the Establishment Clause
Does the court adopt any reasoning from Elmbrook
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Contact Information
For More Information, Contact:
Lisa T. Scruggs
Duane Morris LLP
[email protected]
312.499.6742
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