Federal appeals court judges raised questions Wednesday about the viability of a legal challenge to the Elmbrook School District's past practice of holding graduation ceremonies in a nearby church, noting that the ceremonies returned to campus last year.
At oral arguments before the Seventh U.S. Circuit Court of Appeals, Chief Judge Frank Easterbrook also raised concerns about the anonymity of the plaintiffs, who include nine current and former students, their parents and taxpayers.
"I've never in my life seen an anonymous taxpayer suit," Easterbrook said, noting that only one of the plaintiffs was a minor, whose anonymity is more likely to be preserved in a lawsuit.
Wednesday's hearing before the three-judge panel was the result of an appeal filed by Americans United for Separation of Church and State after U.S. District Court Judge Charles Clevert earlier tossed out the advocacy group's lawsuit against the Elmbrook School District.
The group's lawsuit was filed shortly before Brookfield Central and East high schools' 2009 graduation ceremonies as an attempt to keep the events from being held at Elmbrook Church, a non-denominational megachurch in the Town of Brookfield. Clevert rejected the group's request for a preliminary injunction as well as a later claim for damages after the district moved the ceremonies back to campus.
Americans United contended that, by holding graduation and other celebrations at a church replete with Christian symbols, officials violated the First Amendment's prohibition on government establishment of religion. The district has argued that because the church was chosen based on student demand and for secular reasons, such as comfort and convenience, school officials did not cross a constitutional line.
In the hearing, which lasted for nearly an hour, the judges questioned whether holding a graduation ceremony in a church involved the same sort of affirmative religious action that the Supreme Court had previously found unconstitutional in cases involving prayers at public school graduations. They also questioned whether it was any different from allowing elections to take place in religious buildings, which the courts have supported.
So far, no federal appellate court has been confronted with whether holding public school graduations in a church is constitutional, even though the practice is not unique and has been challenged elsewhere.
Among the audience members at attendance at Wednesday's hearing were students in an Advanced Placement Government class in the district.