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Supreme Court bypasses Elmbrook graduation case, again

April 22, 2013

The U.S. Supreme Court took no action Monday on Elmbrook School District's petition requesting review of a case testing the constitutionality of a public high school holding graduation ceremonies in a church. The case has been listed for consideration four times by the court.

The U.S. Supreme Court is scheduled to consider it again at Friday's private conference, and district administrators said they are "actively monitoring" the case.

In 1999, the senior class at Brookfield Central High School voted to move its graduation ceremony to Elmbrook Church because it had better accommodations than the school, according to the district's website. District administrators approved the students' request, and Central held its first graduation at Elmbrook Church in June of 2000.

Brookfield East High School moved its graduation to Elmbrook Church in 2002, again in response to a student body vote. Both high schools continued to hold graduation at the church until 2009.

In April, 2009, Americans United for the Separation of Church and State, a nonpartisan organization based in Washington, D.C., filed a motion for a preliminary injunction in federal district court to prohibit the district from holding graduation ceremonies at Elmbrook Church. The group alleged that the district violated the U.S. Constitution by holding public school graduation ceremonies in a religious facility.

The court denied that motion and later dismissed the case. The group appealed that decision to the 7th Circuit Court of Appeals, and a select group of judges again ruled that Elmbrook had not violated the Constitution.

The group then asked for a full panel of 7th Circuit judges to hear the case. In July, 2012, the court reversed its prior decision, now finding that it was unconstitutional for the district to have held graduation ceremonies at Elmbrook Church.

The Elmbrook School Board decided in a 5-2 vote to appeal the court's decision in the case of Does vs. School District of Elmbrook to the United States Supreme Court.

In 2010, the district moved both graduation ceremonies to Brookfield East's newly built field house, and acknowledges that there is likely no further need to hold events at Elmbrook Church. However, the School Board members said future circumstances may require that it holds events off campus, and seeks clarity on what venues may be considered.

Several attorneys have offered pro-bono assistance to Elmbrook, which minimizes litigation costs for the district. According to the district's website, Elmbrook has paid an insurance deductible in the amount of $5,000. The board says the district's out-of-pocket expenses for the appeal will not exceed $15,000.

The U.S. Supreme Court typically receives about 10,000 petitions for review each year, and it accepts between 80 and 100, or roughly 1 percent, of those petitions. Elmbrook's legal counsel believes the district has a reasonable chance of having the case accepted by the court, largely because of its maneuvers in the appellate courts, and because it has national implications with respect to a public entity's ability to access religious venues.

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