Elmbrook seeks Supreme Court ruling on graduation case

The Elmbrook School Board on Tuesday voted 5-2 to ask the U.S. Supreme Court to decide whether the district violated the Constitution by holding graduation ceremonies from 2000 through 2009 at Elmbrook Church.

The vote came after an appeals court ruling in July reversed a previous decision to not hold the district liable. Tuesday's decision also came after three closed board discussions in the past month.

A Supreme Court decision to hear the case may take three to six months and a decision on the matter ultimately could take 18 months if the court agrees to hear the case, said Kristi Foy, the district's in-house legal counsel and director of human resources.

Foy presented a prepared report laying out three scenarios including an out-of-court settlement with Americans United, a civil rights organization that has represented nine plaintiffs who first sued in 2009. A second option would be Elmbrook returning to the district court to litigate the amount of damages and attorney's fees.

She noted that the district has been offered pro bono support from multiple legal sources and that the financial risk would not be higher than $15,000 in appealing to the Supreme Court. Foy noted that Americans United just negotiated a $500,000 settlement out of a $1 million suit from a similar school case in Connecticut.

An admission of guilt?

After Meg Wartman made the motion and Glen Allgaier seconded to choose the Supreme Court option, Board President Tom Gehl said to not support the motion would be an admission that the thousands of students, families, faculty and others who participated in those ceremonies all violated the Constitution.

"When I became a board member, I took an oath to uphold the Constitution," Gehl said, pointing out that in this case he is applying the 10th Amendment of political freedom over the First Amendment of religious freedom.

"I favor the right of local communities and their representatives to not have their decisions overturned by the litigious efforts of an outside entity," he said.

Jean Lambert said "there was no intent, no violation of the Constitution" and that the matter was taking the Constitution "down the wrong path."

Allgaier said he feared the appeals court decision would have "ramifications" beyond the district and that letting the Supreme Court decide would be the proper course.

Kathryn Wilson and Bob Ziegler, both voting against the motion, said they did not think the district would be able to win.

"I think, arguably, this court was more favorable to our case than the Supreme Court would be," Ziegler said.

Support from new officials

New Superintendent Mark Hansen said that he and his administrative team support appealing to the Supreme Court based on finances and policy.

"Given the fiscal risk that the district faces may be below the $15,000 threshold and given the potential public policy implications, it is our position that this needs clarity from the Supreme Court," Hansen said.

Foy said she and the district's external legal counsel, Lori Lubinsky of Axley Law Firm in Madison, will go through the pro bono offers to see which one is most suited to partner with Lubinsky.

"That's the first step and then we have to file our appeal, by Oct. 22," Foy said. She told the board that the U.S. Supreme Court gets 10,000 appeal requests per session and that only about 80 to 100 are heard.

Seniors voted to move

In 1999, the senior class at Brookfield Central voted to move its graduation ceremony to Elmbrook Church because the facility had ample seating capacity, air conditioning, abundant parking and was handicap accessible. The vote was approved by school and district leaders. Brookfield East then moved its graduation to the church in 2002, also in response to a student vote. In 2010, the district moved both graduations to the newly built Brookfield East field house, where the ceremonies have been held each year since.

After Americans United filed its original federal court suit in 2009, a federal court in 2010 granted Elmbrook's motion for a summary judgment and dismissed the case. In September of 2011, a three-judge federal panel upheld that court's ruling.

Americans United requested that the full 7th Court of Appeals hear the case. In July, that court ruled against the school district.