Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

DOE v. ELMBROOK SCHOOL DISTRICT (September 9, 2011)

Prior to 2000, Brookfield Central and Brookfield East High Schools in Brookfield, Wisconsin held their graduation ceremonies in their gymnasiums. The venues were generally considered quite uncomfortable -- hot, cramped, uncomfortable seating. Central's senior class officers for the Class of 2000 recommended to the school and District that the ceremony be moved to the Elmbrook Church, a local non-denominational Christian institution. The school adopted the recommendation and held its graduation ceremony at the Church from 2000 until 2010, when it moved the ceremony to its newly-constructed district fieldhouse. Brookfield East traveled a similar path and held its graduation ceremony at the Church from 2002 until 2010. Both the inside and the outside of the Church reflect its Christian heritage. There are crosses and other religious symbols outside the church. The lobby, through which all visitors must pass, contains religious banners and symbols as well as tables with religious literature. A large cross hangs in the sanctuary, where the ceremony takes place. Bibles and hymnals can be found in all the pews. Several parents objected to the ceremonies' venue. A group of current and former students and their parents brought suit against the District alleging that the practice violated the First Amendment. Chief Judge Clevert (E.D. Wis.) granted summary judgment to the District. Plaintiffs appeal.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Flaum (dissenting in part), and Ripple affirmed. The Court first addressed justiciability, given the renovation of both gymnasiums and the construction of a new fieldhouse. All 2010 ceremonies were held in those facilities and the District has no present intention to use the Church again. But the Supreme Court has said that a defendant's voluntary decision to stop allegedly wrongful conduct does not make a case moot unless the party seeking mootness meets a heavy burden of proving that the behavior cannot be expected to recur. The District did not meet that burden. Although the District does not currently intend to use the Church again, it has not officially ruled it out. Next, the Court addressed the fact that the plaintiffs were proceeding anonymously, as Does. Although anonymous litigation is disfavored and the Court was mildly critical of the district court's failure to explain his reasoning in granting the motion, the Court nevertheless found no abuse of discretion. Nothing in the record suggests that the district court did not carefully consider the question and apply the proper legal standard and the basis for the ruling is fairly apparent from the eight sworn declarations presented by the plaintiffs. Given the intensely emotional nature of religious beliefs and the fact that some of the plaintiffs are children, the district court was well within its discretion to conclude that the plaintiffs' privacy interest outweighed the public interest in transparent judicial proceedings. The Court turned to the merits. The Supreme Court developed a three-pronged test in Lemon for Establishment Clause cases. A practice violates the clause if it has no legitimate secular purpose, if it advances or inhibits religion as its primary effect, or if it fosters excessive entanglement with religion. The Court concluded that the District did not violate the First Amendment: a) the students were not forced to participate in any religious exercise, as was the case in Lee, b) the iconography was not associated with the District, c) an objective observer would not assume that the presence of religious paraphernalia suggested the District’s endorsement thereof, d) the District has not sponsored any religious display, e) the students and the district selected the Church for totally secular purposes, f) there is no evidence that the Church used the event to influence the ceremony or that the District used the event to endorse religion, and g) the use of taxpayer funds for the Church rental was appropriate as a standard fee for use arrangement.

Judge Flaum concurred in the majority's opinion with respect to justiciability and anonymity but dissented on the merits. He concluded that a public school graduation at a church where there are both live human beings and inanimate objects urging religious messages on children violated the Establishment Clause. In his view, the venue's "sheer religiosity" conveyed a message of District endorsement.

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SHERMAN v. KOCH (October 15, 2010)

In 1969, the Illinois legislature authorized, but did not require, public school teachers to "observe a brief period of silence" to be used as "an opportunity for silent prayer or for silent reflection." The legislature added a section to the act in 2002 declaring a student's right to exercise religion freely and to be free from State pressure regarding the exercise or non-exercise of religion. In 2007, the legislature made the brief period of silence mandatory. Dawn Sherman, a public high school student, brought suit through her father under § 1983. She brought a facial challenge under both the First and Fourteenth Amendments. Judge Gettleman (N.D. Ill.) granted a preliminary injunction, certified a plaintiff class of state public school students, certified a defendant class of state public school districts, granted summary judgment to the plaintiff class, and permanently enjoined the statute’s implementation. He concluded that the statute violated the First Amendment in that it failed the first two prongs of the Lemon test (it had no secular purpose and its primary effect was to advance religion). He also concluded that the statute was unconstitutionally vague under the Fourteenth Amendment. The defendants appeal.

In their opinion, Judges Ripple, Manion, and Williams (dissenting) reversed. The Court briefly addressed and rejected the argument that Sherman lacked standing because she suffered no damage (since she was only subjected to silence). Sherman alleged that the practice violates the First Amendment. Her status as a student is enough for standing. On the merits, the Court applied the Lemon test. Under Lemon, a statute: a) must have a secular legislative purpose, b) must not primarily advance or inhibit religion, and c) must "not foster an excessive government entanglement with religion." The Court first concluded that the statute had a secular legislative purpose under the first Lemon prong. It relied on the plain meaning of the statute, its context, its legislative history, and the events leading to its passage. It concluded that each of those factors supported the articulated legislative purpose of providing a moment of silence at the beginning of a school day in order to calm the students. The record was very different from the record in Wallace, in which the Supreme Court held that Alabama's similar statute lacked any secular purpose. In fact, the Court found support for its view in the Wallace concurring opinions of Justices O'Connor and Powell. With respect to the second Lemon prong, the Court concluded that the statute's primary effect was not to advance or inhibit religion. The Court relied principally on the statute's language. The statute expressly provided that the brief period of silence could not be conducted as a religious exercise -- and thus did not advance religion. It also expressly provided that the moment of silence was an opportunity for prayer or silent reflection -- and thus did not inhibit religion. Since no one raised the third Lemon prong, the Court concluded that the statute met the test and did not violate the Establishment Clause. The Court briefly considered the facial Fourteenth Amendment vagueness challenge. The Due Process Clause does not require perfection and precision, particularly where criminal penalties are not at issue and particularly in a school setting. Although the statute does not provide any details regarding the moment of silence’s logistics, testimony in the record indicates that school districts are quite capable of providing that detail. The facial challenge fails.

Judge Williams dissented from the panel's opinion with respect to the First Amendment challenge. Her view can be gleaned from one sentence in her opinion: ([L]et’s call a spade a state -- statutes like these are about prayer in schools." Notwithstanding the deference that should be shown to the legislature's stated purpose and the fact that there are statements of secular purpose in the record, Judge Williams believed they were pretextual. She relied principally on two things: the specific reference to prayer and the inclusion of prayer as one of (and the first of) two available alternatives for the moment of silence. She believed that the statute endorsed religion and thereby violated the Establishment clause.

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BADGER CATHOLIC, INC. v. WALSH (September 1, 2010)

Badger Catholic is an approved and registered student organization at the University of Wisconsin. As such, it is eligible to apply for and receive money from the University. The monies come from a University account that is funded by a fee charged to every university student. The Supreme Court approved the University's practice (University of Wisconsin v. Southworth) because it was a neutral, forum-creating program that distributed funds without regard to viewpoint. The University rejected Badger Catholic's request for funds for six different programs. The denial was based on the University's practice of not funding programs that involve "worship, proselytizing, or religious instruction." Judge Adelman (W.D. Wis.) concluded that funding such activity would not violate the Establishment Clause and entered a declaratory judgment requiring the University to fund Badger Catholic on the same basis it funds other organizations. The University appeals -- Badger Catholic cross-appeals.

In their opinion, Chief Judge Easterbrook and Judges Evans and Williams (dissenting) affirmed. The Court cited two Supreme Court cases (Widmar and Rosenberger) in support of its conclusion that the district court was correct in its decision that funding the programs would not violate the Establishment Clause. The University also argued that it was permitted to withhold the funds even if the funding did not violate the First Amendment. The Court distinguished the University's reliance on Locke (which permitted a state to exclude ministry study from its scholarship program). The decision in Locke was a form of government speech -- here, the University created a public forum for student speech. Having created the public forum, it must not discriminate among the speakers within the scope of the forum. The University must fund the rejected programs if similar, secular programs are funded. The Court also rejected Badger Catholic's cross-appeal: a) damages are not available against the University because it is not a "person" under § 1983, b) damages are not available against the individual defendants because of official immunity, c) damages are not available under state law because Badger Catholic failed to comply with statutory notice requirements, and d) the district court did not abuse its discretion in issuing a declaratory judgment instead of an injunction.

Judge Williams dissented. She phrased the issue as whether the University's rejection of Badger Catholic's programs was disallowing a particular view on a permissible topic (viewpoint discrimination -- unconstitutional) or disallowing any view on a particular topic (content discrimination -- constitutional). Her conclusion was that the University was engaged in the latter. The Constitution allows it to decide not to fund purely religious activity. It gets around any problem in defining the scope of that restriction by allowing the student organizations themselves to identify purely religious activities.

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MILWAUKEE DEPUTY SHERIFFS' ASSOCIATION v. CLARKE (December 4, 2009)

The Milwaukee County Sheriff, David Clarke, invited a religious group, the Fellowship of the Christian Centurions, to attend and speak at a department leadership conference. All deputies above the rank of sergeant were required to attend. At the conference, Clarke announced some upcoming promotions, distributed written material with quotations from the Bible, and described "people of faith" as one of the qualities he was looking for in a leader. One of the Centurions then spoke and distributed additional material. After the conference, representatives of the Centurions also made presentations and distributed flyers at a number of mandatory roll calls. Two deputies, and their union, brought suit under § 1983. They alleged a violation of the Establishment Clause and the Free Exercise Clause of the First Amendment. The court granted summary judgment to the plaintiffs on the Establishment Clause claim. The defendants appeal.

In their opinion, Judges Bauer, Cudahy and Williams affirmed. Under the Establishment Clause, government action may not: a) have a non-secular purpose, b) have the principal effect of advancing or inhibiting religion, or c) foster an excessive government entanglement with religion. Although the first prong requires an analysis of the government's actual purpose, the second does not. A violation can be established if a reasonable person would conclude that the government action amounted to an endorsement of religion. Here, very few outside organizations have the kind of access given to the Centurions -- and those that were were organizations that partnered with the department in some fashion. The Court concluded that a reasonable observer would interpret the Sheriff's actions as an endorsement, although it was careful to limit its conclusion to the facts presented. In its analysis, the Court also rejected the Sheriff's argument that the First Amendment compelled him to grant access to the Centurions. The Court reasoned that the Sheriff did not create a forum of any kind by having a department meeting or a roll call. The Centurions were not looking for a place to speak -- they were looking for a specific audience to speak to. The Sheriff was not required to give that access.

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LASKOWSKI v. SPELLINGS  (October 14, 2008)

In 1999, Congress appropriated $500,000 to the Department of Education (“DOE”) for a grant to the University of Notre Dame to support a teacher quality program. Notre Dame applied for the grant, indicating that the money would support its Alliance for Catholic Education (“ACE”) program. ACE places and trains teachers in Catholic schools in poor neighborhoods. DOE awarded the grant. Laskowski and Cook, two federal taxpayers, sued the Secretary of the DOE, alleging that the appropriation violated the Establishment Clause. The plaintiffs sought to enjoin the award of the money but did not seek preliminary injunctive relief. Notre Dame intervened. By the time the court heard the case, the DOE had already paid the full amount of the grant to Notre Dame. The court dismissed the case as moot. The plaintiffs appealed, conceding their request for injunctive relief was moot but contending that other remedies were available. The Seventh Circuit panel agreed that the court could not order the DOE to attempt to recover the money from Notre Dame but split on whether the court could order Notre Dame to repay the disbursed funds, if the appropriation violated the Establishment Clause. The majority reversed the dismissal, holding that it could so order. The United States Supreme Court granted certiorari, vacated the judgment, and remanded for reconsideration in light of their decision in Hein v. Freedom From Religion Found.

In their opinion, Judges Posner, Evans, and Sykes affirmed. The only issue facing the Court was whether the plaintiff taxpayers had standing to seek restitution of the grant money from Notre Dame to the U.S. Treasury. The panel began with the general standing rule that payment of taxes is a very generalized interest and usually not enough to establish standing to challenge the constitutionality of government activity. The Court focused on the one exception to the rule. The Supreme Court decided in Flast that a taxpayer could seek to enjoin a specific appropriation of Congress as a violation of the Establishment Clause if the appropriation was made pursuant to Congress’ Article 1, Section 8 taxing and spending power.  

Hein presented a slightly different twist to the standing issue. The Hein taxpayers brought an Establishment Clause challenge to an Executive Branch program funded out of its own general appropriations.  A divided panel of the Seventh Circuit found standing.  The Supreme Court reversed. A three-justice plurality declined to extend the Flast exception beyond the congressional action facts present in the case but also stopped short of overruling Flast, a result preferred by the two-justice concurrence. After the decision in Hein, the panel noted, the Flast exception is now strictly limited to its facts. The only relief for which the taxpayers have standing is injunctive, which is no longer available here. The case is moot and was properly dismissed.

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