The Supreme Court Denied Cert In Elmbrook . . . Now, What? Alliance - - PowerPoint PPT Presentation

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

2  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

Doe, et al. v. Elmbrook School District – The Facts

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 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

• verwhelming 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

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 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.

Doe, et al. v. Elmbrook School District – The Facts

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 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.

The First Amendment Establishment Clause The Lemon Test and Its Progeny

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Establishment Clause Tests

Lemon Test

Traditional Lemon Test Endorsement Test

Coercion Test

Tests Generally Applied Pre-Elmbrook

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• 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.

Traditional Lemon Test Asks:

• Does the challenged government practice have the effect of

communicating a message of government endorsement or disapproval of religion?

Endorsement 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?

Coercion Test Asks:

Doe, et al. v. Elmbrook School District – The 7th Circuit Decisions – Three Judge Panel

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 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.”

Doe, et al. v. Elmbrook School District – The 7th Circuit Decisions – En Banc Court

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 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

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



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.

New Standards Created By Elmbrook

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Lemon Test

Endorsement Test "Pervasively Religious" Standard Does the "sheer religiosity" of the space suggest endorsement

Establishment Clause Test

Coercion "Captive Audience" Standard 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?

 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

Now, What?

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The Ultimate Result for Your Charter School Clients?

Why Do We Care?

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 Facilities, Facilities, Facilities

 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

• ther schools

 We Need All The Facilities We Can Access

 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

• rganizations that initiate Establishment Clause and

church/state separate challenges

Why Do We Care?

16 

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

• rganizations

 The majority suggests that it would be overly formalistic to allow a

school to create a “pervasively religious environment in the classroom”

• r “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

• wned facilities:



“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

• perated facility

 Three guiding principles:

 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?

 Have you established a typical, commercial relationship

with the landlord/religious organization?

 Can you show that your choice is driven by a secular purpose?

 Does the relationship suggest public endorsement of

religion in any way?

 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:

 Nature of the proposed facility use

 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

 What tests are used to interpret the Establishment Clause  Does the court adopt any reasoning from Elmbrook

Contact Information

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For More Information, Contact: Lisa T. Scruggs Duane Morris LLP LTScruggs@duanemorris.com 312.499.6742