Doe Ex Rel. Doe v. ELMBROOK SCHOOL DIST.

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-2922

JOHN D OE, 3, a minor by D OE 3’s
next best friend Doe 2, et al.,
Plaintiffs-Appellants,
v.

E LMBROOK SCHOOL D ISTRICT,
Elmbrook Joint Common School District
No. 21,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-cv-409—Charles N. Clevert, Jr., Chief Judge.

A RGUED F EBRUARY 9, 2011—D ECIDED S EPTEMBER 9, 2011

Before E ASTERBROOK, Chief Judge, and F LAUM and
R IPPLE, Circuit Judges.
R IPPLE, Circuit Judge. A group of pseudonymous plain-
tiffs, referring to themselves as Does 1 through 9,
brought this action against the Elmbrook School District
(“the District”) in the United States District Court for
2 No. 10-2922

the Eastern District of Wisconsin. They alleged that the
District’s practice of holding high school graduation
ceremonies and related events at a Christian church
rented by the District for the occasion violated the Estab-
lishment Clause of the First Amendment. They sought
preliminary and permanent injunctions, a declaratory
judgment and damages. After the district court denied
the Does’ motion for a preliminary injunction, the parties
filed cross-motions for summary judgment. The district
court granted the District’s motion and denied the
Does’ motion. The Does now appeal. We hold that, on
the record before us, the District’s use of the rented
church space was neither impermissibly coercive nor
an endorsement of religion on the part of the District.
Because there was no violation of the Establishment
Clause, we affirm the judgment of the district court.

I
BACKGROUND
A. Facts
1. The District
The District is a municipal public school district cen-
tered around Brookfield, Wisconsin, a suburb to the
west of Milwaukee. Its two major high schools are
Brookfield Central and Brookfield East. For part of the
last decade or so, Central and East have held their high
school graduation ceremonies in the main sanctuary of
No. 10-2922 3

Elmbrook Church (“the Church”), 1 a local Christian
evangelical and non-denominational religious institu-
tion. Central began the practice in 2000, and East
followed in 2002; both schools rented the Church for
graduation every year thereafter through 2009. For at
least some years since 2003, Central also rented the
Church’s chapel, a smaller room, for its senior honors
night. East rented the Sharon Lynne Wilson Center for
the Arts, a secular facility, for its honors night.
The impetus to move Central’s graduation to the
Church seems to have come from the student officers of
the senior class of 2000, who believed that the school’s
gymnasium—the previous venue—was too hot, cramped
and uncomfortable. Those attending were packed in;
they had to sit on hard wooden bleachers or folding
chairs; and there was no air conditioning. Seeking a
better alternative, the student officers decided upon the
Church, which was much larger than the gymnasium
and had more comfortable seats, air conditioning and
ample free parking. They presented their idea to

1
The Does refer to the room in which the ceremonies were held
as the “sanctuary,” but the District insists that it actually is
called the “auditorium” and that it is labeled as such. Both
parties agree that the Church itself refers to the room variously
as the “sanctuary,” the “Sanctuary/Auditorium” and the
“auditorium.” R.65 at 9, ¶ 37. It is clear that the room is a
religious venue and that “[t]he Church holds its weekend
worship services” there, id. ¶ 36. We shall employ the nomencla-
ture in favor of the plaintiffs at this stage of the proceedings.
4 No. 10-2922

District Superintendent Matt Gibson 2 and then to the
senior class, which voted in favor of the proposal. After
the vote, Principal Jim Brisco made the ultimate decision
to choose the Church, and Superintendent Gibson ap-
proved. A similar process began at East two years later,
and Principal Joe Schroeder “eventually adopted the
proposal, after a majority of seniors voted for it.” R.56 at
12, ¶ 83. Until 2005, each year the students in the
senior class participated in advisory votes to choose

2
In September of 1999, the senior class officers sent a letter to
Superintendent Gibson making their case for the Church:
We request that the site of the ceremony be
changed to an auditorium in Elmbrook Church . . . .
As you know, the graduation ceremony has been
held in the Brookfield Central Gymnasium for the
past several years. The seating in the Gymnasium
is very limited, causing the atmosphere to be
very busy and perhaps even chaotic. On top of the
crowding, the temperature in the Gymnasium gets
extremely hot in the month of June. We feel that the
Elmbrook Church will overcome the limitations of
space and temperature control, providing ample
comfortable seating and an air-conditioned room.
The cushioned seats are also much more comfort-
able in comparison to the hard, wooden bleachers
available at school. In addition, there are more than
enough parking spaces and excellent handicap
facilities available at the church.
R.22, Ex. A at 1. There is no information in the record about how
the senior class officers first learned of the Church or its ameni-
ties.
No. 10-2922 5

between two or three venues. These preliminary selec-
tions were made by school officials and senior class
officers. The Church was always one of them, and the
Church invariably emerged the overwhelming favorite.3
In 2006, the principals of East and Central determined
that holding a vote for the 2007 graduation venue would
be pointless and simply selected the Church after it was
recommended to them by the senior class officers of
the two schools.
Superintendent Gibson and Tom Gehl, a member of the
school board since 2005 and president of the school
board since 2009, are both members of the Church. The
Does have not alleged that Superintendent Gibson or
Board President Gehl have engaged in any efforts to
steer graduation ceremonies to the Church, nor do they
allege that either of these officials has misused his office
to benefit the Church or to form a relationship between
the District and the Church. There is no evidence that
either Superintendent Gibson or Board President Gehl
had anything to do with the selection of the Church
for graduations, other than Superintendent Gibson’s
approval of decisions made at the school level.4

3
For example, in 2005, ninety percent of seniors at East voted
for the Church. Six percent chose the Expo Center, and four
percent chose the East gymnasium. R.9 (R.4 Vol. 3), Ex. 97.
4
Superintendent Gibson was involved, however, in responding
to complaints about the District’s use of the Church and in
coordinating certain aspects of the rental arrangement with
Church officials.
6 No. 10-2922

With the exception of Mr. Gibson, who has been Superin-
tendent of the District since 1995, the major players on
the District’s side have changed. Don LaBonte took over
as principal of Central in 2005 after two intervening
successors to Mr. Brisco. 5 In the same year, Brett Bowers
became principal of East when Mr. Schroeder left.6 The
Church charged a standard rental rate to the District,
which ran between $2,000 and $2,200 for each gradua-
tion exercise, and between $500 and $700 for honors
night. Money raised by the senior class of each school
covered part of the rental fees, and the District funded
the rest through its general revenues, which come from
property taxes.

2. The Church
The atmosphere of the Church, both inside and outside
the sanctuary, is indisputably and strongly Christian.
Crosses and other religious symbols abound on the
Church grounds and the exterior of the Church
building, and visitors encounter these symbols as they
drive to the parking lot and walk into the building. Many
of these symbols—including a cross on the Church roof
and a sign with a cross and the words “ELMBROOK
CHURCH”—are visible from the public intersection

5
Mr. Brisco was principal of Central from 1996 to 2002. Two
other principals, each with a tenure of a year, succeeded him
before Mr. LaBonte’s appointment to the job.
6
Mr. Schroeder was principal of East from 1999 to 2005.
No. 10-2922 7

outside the Church. The street names given the drives
approaching the Church are “Agape” and “Barnabas.” R.7
(R.4 Vol. 1), Exs. 1-28, 1-29.
To reach the sanctuary, visitors must pass through the
Church lobby, which also has served as a natural con-
gregation point for graduates and their guests after past
graduation ceremonies. The lobby contains tables and
stations filled with evangelical literature, much of which
addresses children and teens, and religious banners,
symbols and posters decorate the walls.7 In the middle of

7
Some examples from images captured at past ceremonies:
Banners hanging on the lobby walls bear the messages “Know-
ing the Lord of Jubilee,” “Children’s Ministry: Leading
Children to a Transforming Life in Christ,” “JESUS” and “LORD
OF LORDS.” R.7 (R.4 Vol. 1), Exs. 6, 1-12, 1-13, 1-14. An antique-
style wooden pushcart labeled “PRAYER” sits in the hallway.
Id. Ex. 1-17. A polygonal column displays religious pam-
phlets and a large sign asking, “Puzzled . . . About Where the
Church should be Planted?” on one side. Id. Ex. 1-23. On
another column face is a poster labeled “Summer Godsquad.”
The poster proclaims, “Hey Jr. Highers! Who Are Your
Heroes?” and displays cut-out images of movie characters
such as E.T., Buzz Lightyear and Marty McFly, a soccer player,
unidentifiable public figures and Jesus. Id. Exs. 1-18, 1-19. On
one wall, a carved wooden plaque invites those who view it
to “ ‘. . . go and make disciples of all nations. . .’ Matthew
28:19.” R.52, Ex. 172-15. On the walls are literature
displays labeled, among other things, “{children}” and “{stu-
dent}.” Id. Ex. 172-34. In one corner of the lobby, a table con-
taining a computer and several displays of religious
(continued...)
8 No. 10-2922

the lobby is a large, circular desk displaying pamphlets
such as “{young adults},” “{couples ministry},” “{middle
school ministry},” “{high school ministry}” and “{college
ministry}.” R.52, Exs. 172-28, 172-29. The District admits
that Church members manned information booths that
contained religious literature during the 2009 graduation,
and a DVD recording of the 2002 ceremony shows
people staffing these tables. The District also admits
that during the 2002 ceremony, “Church members
passed out religious literature in the lobby,” R.65 at 19-20,
¶ 86, although neither the District nor the Does divulge
further details about how the distribution took place
or at whose behest. According to Doe 1, when he attended
his older sibling’s graduation, “[m]embers of the
church, instead of school officials, handed out graduation
materials during the ceremony.” R.7 (R.4 Vol. 1), Ex. 21
at 2, ¶ 9.
The graduation ceremonies take place on the dais at
the front of the sanctuary, where school officials and
students with roles in the ceremony are seated. An enor-
mous Latin cross, fixed to the wall, hangs over the dais
and dominates the proceedings. 8 The first time Central
held its graduation in the sanctuary, the cross was

7
(...continued)
literature sits under a sign labeled “{children & student con-
nect}.” Id. Ex. 172-31.
8
“The cross is approximately fifteen to twenty feet tall and
approximately seven to ten feet wide.” R.56 at 5, ¶ 28.
No. 10-2922 9

covered, apparently by accident.9 During subsequent
graduations, the Church refused Superintendent
Gibson’s requests to veil the cross, in keeping with a
general Church policy against covering its permanent
religious displays. The Church did agree, however, to
remove any non-permanent religious symbols from the
dais. The chapel used by Central for its senior honors
night also contains a cross.
During the ceremonies, “graduating seniors . . . sit down
in the front, center rows of pews of the [sanctuary’s] main
level.” R.56 at 9, ¶ 56. Guests sit in the other pews. The
parties agree that “Bibles and hymnal books remain in
all the pews,” id. at 6, ¶ 34, as do a “yellow ‘Scribble
Card for God’s Little Lambs,’ a pencil, a donation
envelope entitled, ‘Home Harvest Horizon: offering to
the work of Christ,’ ” and other religious literature, id. ¶ 35.
There is no evidence that any of these materials
were placed in the pews specifically for the graduation
ceremonies.

3. The Controversy
Complaints about the District’s use of the Church arose
soon after the practice began. In 2001, a parent asked
the District to stop holding graduation ceremonies at
the Church because the parent, a non-Christian, did not

9
According to an email sent by Superintendent Gibson, the
cross “was inadvertently veiled by a custodian.” R.8 (R.4 Vol.
2), Ex. 42 at 1.
10 No. 10-2922

want her child exposed to the Church’s alleged
teachings about those who do not share its faith.1 0 In that
same year, the Freedom from Religion Foundation and
the American Civil Liberties Union (“ACLU”) of Wis-
consin voiced objections to the graduation site and
asserted that it violated the Constitution. The Anti-Defa-
mation League also objected in 2002, followed by Ameri-
cans United for Separation of Church and State (“Ameri-
cans United”) in 2007.
A sampling from the series of emails and letters ex-
changed between objecting parties and the District illus-
trates the nature of the dispute. In 2002, Superintendent
Gibson sent an email to one parent insisting that his only
role in the selection of the site was “allow[ing] each
decision” made independently by the schools “to stand”
and that the decisions “had nothing to do with [his]
particular church membership or non-membership.” R.8
(R.4 Vol. 2), Ex. 77. The parent’s response questioned
the veracity of that account and speculated that Superin-
tendent Gibson’s membership in the Church played a
role in the Church’s selection:
Sorry to say, but every time this comes up you try
to obfuscate what your role was. You refuse to
take responsibility and that’s disappointing.
....

10
Specifically, the parent characterized as “ ‘intensely hateful
and violent’ ” the Church’s active promotion of “ ‘the idea that
people like [the parent] . . . are going to . . . a Hell-like place
undergoing endless torments.’” R.56 at 17, ¶ 113 (alterations
in original).
No. 10-2922 11

Had you excused yourself from the decision be-
cause of the obvious conflict of interest your mem-
bership in the church creates, it is likely cooler
heads would have thought this through thor-
oughly, sought objective counsel *before the deci-
sion was made*, and answered no.
....
How could your membership in the church not
have influenced your decision? It made it and still
makes it impossible for you to be objective. You
have a pronounced allegiance to the church and
your religion. It is not only a financial coup for
the church to host commencements, but it also
brings the church the reflected glory of the
state’s accomplishment and graduates’ accom-
plishments . . . .
Id.
Another parent’s email, on which employees of Freedom
from Religion Foundation, the Anti-Defamation League
and the ACLU of Wisconsin were copied, raised similar
concerns:
There is an obvious conflict of interest regarding
the Church: After all, you are a member. And, after
all, the particular Church in question has a direct
mission of evangelism. Whether or not evangelism
was the motive is irrelev[a]nt. The relev[a]nt
point is that you have violated the trust of those
in the community who wish to attend a graduate
ceremony in a secular, non-church setting.
Id. Ex. 36.
12 No. 10-2922

In response to an email in 2003, Mr. Gibson observed
that he had been superintendent for four years before
“the student movement at Brookfield Central to look at
alternatives for graduation began” and asked the
addressee to “refrain from . . . attributi[ng]” the initiative
to him. R.9 (R.4 Vol. 3), Ex. 92. The addressee was unper-
suaded: “Well, Matt, regardless of what you say, I am
convinced that your membership in the church was the
primary factor in the church being okayed as a site for
hosting commencements.” Id. Additionally, the
addressee complained that the Church discriminates
against non-believers and homosexuals and that it
“preaches a fundamentally hateful message,” and he
speculated that the student vote approving the venue
was staged “to make it look like a ‘democratic’ process.” Id.
A 2006 letter from a parent to Superintendent Gibson
praised the District’s increased “sensitivity toward non-
Christian students” but requested that the District try
to avoid scheduling school events and tests on Jewish
holidays and objected to the use of the Church as a gradu-
ation venue. R.8 (R.4 Vol. 2), Ex. 37 at 1. In response,
Superintendent Gibson sent the letter to Principal
Bowers and Principal LaBonte along with a note to
“keep the input on Jewish holidays in mind to the
extent possible when scheduling” and to put an alterna-
tive graduation venue proposed by the parent on the
consideration list for ensuing years’ graduations. Id.
A series of exchanges in 2007 between Superin-
tendent Gibson and Aram Schvey, litigation counsel for
Americans United, explored the constitutionality of the
No. 10-2922 13

practice. Although he defended the venue, Superin-
tendent Gibson assured Schvey that “there are no refer-
ences to religion or to the church in the graduation pro-
gram,” that no religious literature would be distributed
and that Superintendent Gibson previously has “re-
quest[ed] removal of any non-permanent religious
banners that may be on stage” and would continue to
do so. Id. Ex. 40. Schvey appreciated these steps, but
he requested that the District cover the cross and “all
other religious iconography[,] including permanent
banners,” or select a secular venue. Id. Ex. 42 at 2. Super-
intendent Gibson responded that the Church “made a
policy decision several years ago that [the cross] not be
veiled for rentals.” Id. at 1.
In many of the letters and correspondence, Superin-
tendent Gibson noted that the District was building a
new field house that could accommodate graduation
ceremonies and had been engaging in efforts to obtain
funding to renovate Central’s and East’s gymnasiums.
Although earlier efforts to obtain funding had failed,
the public later voted in favor of funding that allowed
the District to begin construction and renovation.
In 2010, Central and East moved their graduation ceremo-
nies to the District’s newly completed field house. Addi-
tionally, in July 2009, Principal LaBonte declared his
intention to move Central’s 2010 honors night to its
newly renovated gymnasium; in supplemental briefing
before us, the District represented that the promised
move had occurred.
14 No. 10-2922

4. The Does
The plaintiffs are current and former students of
District schools and their parents. Doe 1 graduated from
either Central or East in 2009. Doe 2 is Doe 1’s parent
and has an older child whose graduation ceremony
was held in the Church four years earlier, as well as
younger children who attend Elmbrook schools. One
of Doe 2’s younger children is Doe 3, who “will graduate
from a District high school no later than 2014.” Appellants’
Br. 17. Does 1 through 3 all attended the graduation
ceremonies of Doe 1 and of Doe 2’s older child. Does 4
and 9 are the parents of children currently attending
schools in the district; their eldest children are expected
to graduate from high school in 2016 and 2015, respec-
tively. “Does 5 and 6 are the parents of Does 7 and 8, who
graduated from a District high school in ceremonies
held at Elmbrook Church in 2002 and 2005, respectively.”
Id. Does 2, 4, 5 and 6 also pay property taxes that go to
the District.
What the Does all have in common is that they are not
Christians.11 Those of the Does who attended past gradua-
tion ceremonies “felt uncomfortable, upset, offended,

11
Doe 1 “subscribe[s] to a religious faith different from Chris-
tianity,” R.7 (R.4 Vol. 1), Ex. 21 at 1, ¶ 3, as do Does 2 and 3, id.
Ex. 22 at 1, ¶¶ 4, 9. Doe 4 is a humanist, R.56 at 21, ¶ 143, “Does
5, 6, 7, and 8 are atheists,” id. at 22, ¶ 152, and “Doe 9 is non-
theistic, chooses not to be involved in religion, and does not
subscribe to the religious teachings of Elmbrook Church,” id.
¶ 154.
No. 10-2922 15

unwelcome, and/or angry” because of the religious
setting. Id. In fact, the setting completely ruined for Doe 5
the experience of his children’s graduation ceremonies,
some of which he did not attend. Those plaintiffs still
in school or with children still in school do not relish
the prospect of attending future ceremonies at the Church.
According to the Does, there are many other available
venues that the District could use for its graduation
ceremonies. Moreover, the Wilson Center could host
Central’s senior honors night and indeed does host
East’s. The District already pays the Wilson Center a flat
fee each year that allows District schools ample access.
The District responds that, although other venues are
available for graduation, none is as attractive as the
Church, particularly for the price: approximately $2,000
per school per ceremony. However, the Does believe
that some of the other venues are roughly equivalent in
quality and price.

B. Proceedings Before the District Court
On April 22, 2009, the Does filed this action against the
District and moved simultaneously for a preliminary
injunction that would bar the District from holding its
2009 graduation ceremonies at the Church. After the
district court denied that motion, the Does filed an
amended complaint asking the district court to enjoin
permanently the District from holding school events at
the Church or, in the alternative, to enjoin permanently
the District from using the Church “unless all visible
religious symbols [were] covered or removed.” R.77 at 2.
16 No. 10-2922

They also sought damages and a declaratory judgment.
No discovery was taken, and the parties filed cross-mo-
tions for summary judgment. The district court denied
the Does’ motion for summary judgment, granted the
District’s and dismissed the case.
After determining that the plaintiffs had standing, the
district court proceeded to its Establishment Clause
analysis. First, the district court held that the District
was not engaging in religious coercion of the sort that
the Supreme Court held to violate the Establishment
Clause in Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe
Independent School District v. Doe, 530 U.S. 290 (2000).
The district court distinguished those cases on the
ground that they “speak to coerced religious participa-
tion as opposed to exposure to religious symbols.” R.77
at 16. The district court reasoned that, because there was
no religious exercise at the Elmbrook graduation ceremo-
nies, there was no coerced religious participation. Relying
on Lee, it held explicitly that the plaintiffs’ “unease and
offense at having to attend graduation ceremonies at
the Church and face religious symbols, while in no way
minor, is not enough.” Id. at 18.
Second, the district court concluded that the District’s
use of the Church does not have the primary effect of
endorsing religion in violation of the test set forth by
the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602
(1971). “On its face,” the district court conceded, “the
District’s decision to hold graduation ceremonies and
the senior honors event holds symbolic force.” R.77 at 23.
But because “the history and context of the community
No. 10-2922 17

and the forum reflect that secular concerns directed the
move away from school facilities toward an adequate,
convenient, cost-effective graduation venue,” a reasonable
observer would not understand the events to be an en-
dorsement of the Church or its teachings. Id. at 21
(internal quotation marks omitted).
Finally, the district court disagreed with the Does
that the use of the Church excessively entangled the
District with religion. The court found the rental of the
Church to be a standard fee-for-use arrangement and a
non-enduring relationship. It also determined that the
limited interaction between the District and the Church
over the physical setting did not delegate impermissibly
to the Church authority over the graduation events.
Accordingly, the district court granted summary judg-
ment in favor of the District and dismissed the case.

II
DISCUSSION
A. Justiciability
In its response brief in this appeal, the District did not
contend that the case has been rendered moot by subse-
quent events. Nevertheless, we have an independent duty
to ascertain our jurisdiction, see In re Repository Techs., Inc.,
601 F.3d 710, 719 (7th Cir. 2010), and we accordingly
ordered supplemental briefing from the parties to
address whether the case remains justiciable in light of
the completion of the District’s field house and of the
renovations to Central’s and East’s gymnasiums. While
18 No. 10-2922

this case was pending in the district court, the 2009 gradu-
ation took place at the Church as planned. There have
been significant changes in the District’s activity since
then. Central and East both held their 2010 graduation
ceremonies in the field house, and neither school has
an immediate intention to rent the Church facilities for
graduation. Similarly, Central held its 2010 senior
honors night in its newly renovated gymnasium
rather than in the Church chapel.
As an initial matter, whatever the District’s intentions
are as to the future, the entire case is not moot because
those of the Does who have attended past graduation
ceremonies at the Church have live claims for damages.
See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,
551 U.S. 701, 720 (2007) (stating that a claim for damages
“preserve[s]” a court’s ability to reach the merits even
if claims for forward-looking relief are moot); Nelson v.
Miller, 570 F.3d 868, 883 (7th Cir. 2009). However, those
of the Does who have claims for only forward-looking
relief must be dismissed from the case if their claims
are no longer justiciable.
In its supplemental brief, the District contends that
the case is now moot because the District voluntarily has
stopped using the Church and does not have any
present intention of holding future graduation cere-
monies or other events there. A defendant’s voluntary
cessation of allegedly wrongful conduct ordinarily “does
not moot a case or controversy unless ‘subsequent events
ma[ke] it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.’”
No. 10-2922 19

Parents Involved in Cmty. Schs., 551 U.S. at 719 (alteration
in original) (emphasis added) (quoting Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
189 (2000)); see also United States v. W. T. Grant Co., 345
U.S. 629, 632-33 (1953). The Supreme Court recently has
reaffirmed that the burden of proving that the behavior
cannot reasonably be expected to recur is a “heavy” one
that lies with the party seeking a determination that the
case is moot. Parents Involved in Cmty. Schs., 551 U.S. at
719; see also Friends of the Earth, 528 U.S. at 189 (“The
‘heavy burden of persua[ding]’ the court that the chal-
lenged conduct cannot reasonably be expected to start
up again lies with the party asserting mootness.” (alter-
ation in original) (quoting United States v. Concentrated
Phosphate Exp. Ass’n, Inc., 393 U.S. 199, 203 (1968))); Lucini
Italia Co. v. Grappolini, 288 F.3d 1035, 1038 (7th Cir. 2002)
(stating that “[t]he burden of persuasion that such
conduct cannot reasonably be expected to reoccur lies
with the defendant” and reversing a district court’s
decision that a case was moot because “the court did not
point to any evidence showing that no reasonable ex-
pectation existed that” the conduct would reoccur).
Here, the likelihood that the District will again use
the Church for a graduation ceremony—particularly one
that the Does themselves will attend—certainly has
decreased since the District opened the field house. The
Supreme Court has made clear, however, that a
likelihood that would be “too speculative to support” a
finding of initial standing can be sufficient to defeat
an attempt to show mootness caused by voluntary cessa-
tion. See Friends of the Earth, 528 U.S. at 190.
20 No. 10-2922

We believe that the District has not met its burden
of demonstrating that it is “absolutely clear that the
allegedly wrongful behavior could not reasonably be
expected to recur.” Parents Involved in Cmty. Schs., 551
U.S. at 719 (quotation marks omitted). The District did
not attempt to establish a case for mootness before the
district court, and the record remains relatively bare on
the issue other than containing a few scattered repre-
sentations regarding the District’s present intentions.
Although we have accepted the repeal of a challenged
ordinance or an express disavowal of official policy as
sufficient to moot a case, see, e.g., Wernsing v. Thompson,
423 F.3d 732, 744-46 (7th Cir. 2005); Fed’n of Adver.
Indus. Reps., Inc. v. City of Chicago, 326 F.3d 924, 929-31
(7th Cir. 2003), the District in this case has presented no
evidence of a formal or even an informal policy change
regarding graduation ceremonies or the use of private
facilities for school events. As the Does note, the District
has maintained that one of its reasons for using the
Church was that it was less expensive than using the
District’s own facilities. The District has introduced no
evidence that the cost disparity has changed, and it is
not difficult to imagine that such a disparity would
lead District schools back to the Church in the future.
Nothing in official policy would prevent or even obstruct
the District from changing its mind and immediately
returning to the Church. See Rosales-Garcia v. Holland,
322 F.3d 386, 395-97 (6th Cir. 2003) (en banc) (holding
that a challenge to detention was not mooted by
granting of parole because the government made no
promise that it would not reinstate detention and could
revoke the petitioner’s parole “at any time”).
No. 10-2922 21

The District contends, however, that Superintendent
Gibson and the principals of Central and East have repre-
sented that they do not intend to use the Church again;
in the District’s view, these representations suffice to
moot the case. We accord special solicitude to the repre-
sentations of government officials, see Wisconsin Right
to Life, Inc. v. Schober, 366 F.3d 485, 492 (7th Cir. 2004),
but here the District has informed us that its official
position is not to rule out using the Church in the
future should the need arise, Oral Argument (Feb. 9,
2011); see also R.65 at 45-46, ¶¶ 197-200. See Sasnett v.
Litscher, 197 F.3d 290, 291 (7th Cir. 1999) (stating that a
representation that the government “has no present
intention” to reinstate a challenged ordinance “is far
from being an assurance, or even a prediction, that the
state will not do so”), abrogated on other grounds by
Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009).1 2 Indeed,

12
See also City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)
(holding that a city’s moratorium on the police use of
chokeholds did not moot a case because the moratorium was
not permanent); Americans United for Separation of Church &
State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 421 (8th
Cir. 2007) (rejecting defendants’ contention that case was
moot “without any assurance that they will not resume the
prohibited conduct”); Pleasureland Museum, Inc. v. Beutter, 288
F.3d 988, 999 (7th Cir. 2002) (challenge to an ordinance not
moot when city “stated that it will ‘suspend enforcement’ of
the provisions only until the ‘matter is resolved’”); Phillips v.
Penn. Higher Educ. Assistance Agency, 657 F.2d 554, 570 (3d Cir.
(continued...)
22 No. 10-2922

the District has not stated that it would veto a decision
of the individual schools—who, recall, are free to select
the venue for graduation events—or a student move-
ment to return to the Church. The Church facilities
remain an available venue should any such decision be
made. Under these circumstances, therefore, we cannot
say that the District has carried its “heavy burden,”
Friends of the Earth, 528 U.S. at 189 (quotation marks
omitted), of establishing that its own voluntary cessa-
tion of its annual use of the Church makes absolutely
clear that the use will not recur.

B. Anonymous Litigation
At oral argument, we also ordered supplemental
briefing on whether it was proper for the district court
to permit the Does to proceed using pseudonyms to
protect their anonymity. We review the district court’s
decision on this matter for an abuse of discretion. See
K.F.P. v. Dane Cnty., 110 F.3d 516, 519 (7th Cir. 1997)
(stating in dicta that “[t]he use of fictitious names for
parties, a practice generally frowned upon, is left within
the discretion of the district court” (internal citation
omitted)); James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993)
(“The decision whether to permit parties to proceed

12
(...continued)
1981) (“Present intentions may not be carried out, and, at any
rate, they are not controlling on the issue of mootness.” (citing
United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953))).
No. 10-2922 23

anonymously at trial is one of many involving manage-
ment of the trial process that for obvious reasons are
committed in the first instance to trial court discretion.”).1 3
“An abuse of discretion occurs if the district court
reaches erroneous conclusions of law or premises its
holding on a clearly erroneous assessment of the evi-
dence.” Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010)
(internal quotation marks omitted). In Pruitt v. Mote, 503
F.3d 647 (7th Cir. 2007) (en banc), we explained that an
abuse of discretion occurs only if “(1) the record
contains no evidence upon which the court could have
rationally based its decision; (2) the decision is based on
an erroneous conclusion of law; (3) the decision is based
on clearly erroneous factual findings; or (4) the decision
clearly appears arbitrary.” Id. at 658 (quotation marks
omitted). In situations such as the one before us—an
application of a governing legal framework to the facts—if
the district court “applied the correct legal standard
and reached a reasonable decision based on facts sup-
ported by the record,” its decision will stand. Id.1 4

13
See also Plaintiff B v. Francis, 631 F.3d 1310, 1315 (11th Cir.
2011); Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 186-87
(2d Cir. 2008); United States v. Microsoft Corp., 56 F.3d 1448,
1464 (D.C. Cir. 1995) (per curiam).
14
See also Wolf v. Kennelly, 574 F.3d 406, 410 (7th Cir. 2009) (“As
the Supreme Court has pointed out, . . . ‘[a] district court would
necessarily abuse its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assess-
ment of the evidence.’” (second alteration in original) (quoting
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990))).
24 No. 10-2922

It is very well established that anonymous litigation is
“disfavor[ed],” Doe v. Smith, 429 F.3d 706, 710 (7th Cir.
2005), and should be permitted only under exceptional
circumstances. See Doe v. City of Chicago, 360 F.3d 667, 669
(7th Cir. 2004). “The public has an interest in knowing
what the judicial system is doing, an interest frustrated
when any part of litigation is conducted in secret.” Smith,
429 F.3d at 710. Under our precedent, however, “[t]he
presumption that parties’ identities are public information,
and the possible prejudice to the opposing party from
concealment, can be rebutted by showing that the harm
to the [party requesting anonymity] . . . exceeds the
likely harm from concealment.” Doe v. City of Chicago, 360
F.3d at 669.
The District, for “strategic reasons,” did not oppose the
Does’ motion. Oral Argument, supra. Nevertheless, the
district court had “an independent duty to determine
whether exceptional circumstances justify such a
departure from the normal method of proceeding in
federal courts.” Doe v. Blue Cross & Blue Shield United of
Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997). The court
always has the independent duty to consider the public
interest in knowing fully the work of the courts. Our
review is, of course, limited to the record before the
district court at the time it made the decision. See Pruitt,
503 F.3d at 659.
In granting the Does’ motion, the court said, “I’ve not
received any objection to [the Does’] request and find no
legal impediment to granting the plaintiff[s’] request of
that, to be allowed to proceed utilizing pseudonyms.” R.89
No. 10-2922 25

at 3-4. We previously have expressed concern when
district courts have granted a motion to proceed anony-
mously without explaining their grounds for doing so.
See Smith, 429 F.3d at 710 (remanding to the district court
to explore propriety of litigating anonymously where
district court “granted [the plaintiff’s] application to do
so without discussing this circuit’s decisions”); Blue Cross
& Blue Shield United of Wisconsin, 112 F.3d at 872
(stating that although a district court’s granting of an
unopposed motion to litigate anonymously without an
accompanying explanation “was entirely understand-
able given the absence of objection and the sensitivity
of psychiatric records, . . . the privilege of suing or de-
fending under a fictitious name should not be granted
automatically even if the opposing party does not object”).
It is important that a reviewing court be confident that
the court actually engaged in the careful and demanding
balancing of interests required in making this determina-
tion.
The record before us does not suggest that the district
court did anything other than carefully consider the
matter. Notably, the request was made by formal motion
submitted on May 12, 2009, seventeen days in ad-
vance of its ruling. The motion set forth the pertinent
authorities and was supported by detailed affidavits.
There is no indication that the district court did not
thoroughly study the motion, including its discussion
of the pertinent legal authorities, which make clear that
the court has an obligation to balance carefully the pri-
vacy/security concerns of the litigants against the right
26 No. 10-2922

of the public to be informed fully about litigation in the
United States courts. We have noted that a factor in
favor of upholding a ruling is the submission of a
thorough motion that “cited the appropriate cases,”
thereby making the court “aware of the proper standard.”
Wolf v. Kennelly, 574 F.3d 406, 411 (7th Cir. 2009); see also
id. (“The district court was thus aware of the proper
standard for fees and appeared to use it in reaching
its decision.”). We shall not assume that a district judge,
in the fulfillment of his or her high responsibilities, does
not read and give considered attention to the motions
that are presented by the litigants in the course of litiga-
tion. See United States v. Dote, 328 F.3d 919, 924 n.3 (7th
Cir. 2003) (stating that we “presume the district court
read the briefs submitted during the [sentencing] pro-
ceedings” (alteration in original) (quotation marks omit-
ted)); Ross Bros. Constr. Co. v. Int’l Steel Servs., Inc., 283
F.3d 867, 872 (7th Cir. 2002) (“[W]e must presume the
district court read the briefs submitted during the sum-
mary judgment proceedings, where the parties spent a
substantial amount of time arguing over the scope of
the lawsuit . . . .”). Nothing suggests that the district
court performed in anything but the expected conscien-
tious manner. Furthermore, the court, by the time it
ruled on the motion, had become quite familiar with the
litigation. In addition to the pleadings, it had received
the brief and exhibits in support of a preliminary injunc-
tion and the brief in opposition and its exhibits. It
also had the stipulation of uncontested facts filed by
the parties.
No. 10-2922 27

Moreover, the basis for the district court’s decision is
clear from the record.1 5 The Does’ motion was supported
by sworn declarations from eight of the plaintiffs. They
testified that they and their children had suffered reprisals
in the past—including from teachers, school officials
and workplace supervisors—for airing their views on
religion and that they feared future reprisals should
their involvement in the litigation become public knowl-
edge. In addition, the Does attached comments posted
in an online community forum after this lawsuit was
filed. Most of the comments merely reflect the over-
heated rhetoric common to passionate debate about

15
We have affirmed unexplained or incompletely explained
rulings when the grounds for the decision were “ ‘apparent on
the record,’” Local 232, Allied Indus. Workers of America v.
Briggs & Stratton Corp., 837 F.2d 782, 788 (7th Cir. 1988) (quoting
Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1084
(7th Cir. 1987)). See Wolf, 574 F.3d at 410-11 (denial of attorney’s
fees); Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 408 (7th
Cir. 1998) (denial of discovery sanctions); Ross v. City of
Waukegan, 5 F.3d 1084, 1087-88 (7th Cir. 1993) (affirming a
“three-line minute order” denying leave to file an amended
complaint and stating that “[a]lthough a more plenary explana-
tion of the matter would have significantly aided us in our
evaluation . . . , we cannot fault the trial court for going to
the heart of the matter”); Local 232, Allied Indus. Workers of
America, 837 F.2d at 788 (affirming denial of sanctions motion
and stating that “[a]lthough we welcome a district court
judge’s explanation every time a Rule 11 motion is decided,
we believe that . . . the reasons for its denial are apparent on
the record”).
28 No. 10-2922

significant social issues, but a few comments do raise
legitimate concerns, including one comment that the Does’
views “[s]ound[] like the Muslim attitude of hating all
Christians and wanting to do away with them,” that the
appropriate response is to “do them in before they do
you in” and suggesting that the conflict between sup-
porters and detractors of the District’s use of the Church
is “a war of survival.” R.19, Ex. 139 at 22, 23.1 6 We have

16
See also R.19, Ex. 139 at 3 (“If forced to move[] to a hot
crowded gym, then the 330+ families can discuss their dis-
pleasure with the 9 families who filed the lawsuit, if these
cowards would identify themselves!”); id. at 5 (“I also agree
that the cowardly families who are participating in this
lawsuit should be named.”); id. at 7 (“Also, why is the coward
hiding . . . if you’re so proud of your cause, step forward and
receive your just recognition.”); id. at 13 (“It amazes me that 9
malcontents who don’t have the balls to identify themselves
can disrupt what should be a joyous occasion for so many.”);
id. at 14 (“And so the plaintiff(s) requested to keep their
names hidden; had they not, imagine the consequences, not
only for the parents, but for the students listed under the
suit.”); id. at 18 (“Please find a way to publish the names of
the local (nine?) families who are attempting to force
THEIR minority opinions on the majority . . . I for one would
like to attend my granddaughter’s graduation at Elmbrook
Church without this hassle. I already pay outrageous taxes
to this District and REALLY would like to know and be able
to confront these few individuals who think they should
decide for all of us . . . .” (alterations in original)); id. (“The
‘Americans United for the Separation of Church and State’ are
(continued...)
No. 10-2922 29

stated that “[t]he danger of retaliation is often a com-
pelling ground for allowing a party to litigate anony-
mously.” Doe v. City of Chicago, 360 F.3d at 669. Lawsuits
involving religion can implicate deeply held beliefs
and provoke intense emotional responses. Although
there is no evidence of actual violence arising out of
this particular suit, the district court was not required
to disbelieve the Does’ uncontradicted accounts of past
retaliations against them and their children or to give
the online postings an innocent construction in order to
reject the Does’ motion. The district court’s assessment
of the seriousness of the potential danger faced by the
plaintiffs is certainly entitled to significant deference
by this court. District judges sitting in communities
throughout the vast area included within our circuit are
far more familiar with the customs and practices of in-
dividual communities and far better situated to assess
accurately the “temperature” of public discourse in those
communities. Those of us who review cold records in
our appellate chambers must exercise great circumspec-

16
(...continued)
simply a bunch of anti-religious bigots who want to use the
harassment of lawsuits to remove any trace of religion from
public life. They need to be fought by every means possible.”);
id. at 22-23 (“I do have EXTREME PREJUDICE against a reli-
gious group such as the Muslims that want to do away with ALL
Christians, [y]ou bet[]. Call it what you want. The golden rule
here prevails, do them in before they do you in. . . . I would
have to presume at this point the only way you would get
shot in a war of survival would be in the back.”).
30 No. 10-2922

tion in evaluating the estimation of our colleagues in
the district court in these matters.
It also is significant that children are involved in the
suit. See id. at 669 (stating that a plaintiff had failed to
present an adequate case for anonymity in part because
the plaintiff was “not a minor”); Sealed Plaintiff v. Sealed
Defendant # 1, 537 F.3d 185, 190 (2d Cir. 2008) (stating
that an important factor in the balancing inquiry is
“whether the plaintiff is particularly vulnerable to the
possible harms of disclosure, particularly in light of his
age” (internal citations omitted)). Although Doe 1 is no
longer a minor, Doe 1’s sibling Doe 3 is, and Does 2, 4
and 9 currently have minor children attending District
schools. Identifying these adult plaintiffs also would
expose the identities of their children. Because the
subject matter of the suit frequently has a tendency to
inflame unreasonably some individuals and is intimately
tied to District schools, such a risk to children is par-
ticularly compelling. See Sealed Plaintiff, 537 F.3d at
190 (listing as a factor in favor of anonymity “ ‘whether
identification poses a risk of retaliatory physical or
mental harm to the . . . party [seeking to proceed anony-
mously] or even more critically, to innocent non-parties’”
(alterations in original) (emphasis added) (quoting
James, 6 F.3d at 238)).
The district court was entitled to conclude that the
Does’ interest in privacy, supported in the record, out-
weighs the public’s interest in totally transparent judicial
proceedings to the extent that the Does need not divulge
their real names. See Lindsey v. Dayton-Hudson Corp., 592
No. 10-2922 31

F.2d 1118, 1125 (10th Cir. 1979) (ruling that a district
court did not abuse its discretion in denying leave to
proceed anonymously without explanation where the
grounds for the denial were clear). There also is no in-
dication that litigating anonymously will have an
adverse effect on the District or on its ability to defend
itself in this or future actions. Thus, although we reiterate
our concern that courts articulate their reasons for
granting or denying a motion to proceed anonymously,
under the standards set forth in Pruitt, 503 F.3d 647, we
hold that, in this case, the district court did not abuse
its discretion in granting the motion.

C. Establishment Clause
We review a district court’s decision to grant summary
judgment de novo, making all reasonable inferences
in favor of the nonmoving party. Groesch v. City of Spring-
field, 635 F.3d 1020, 1022 (7th Cir. 2011). “The court
shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
The Establishment Clause of the First Amendment to
the Constitution of the United States, made applicable
to the actions of state and municipal governments by the
Fourteenth Amendment, Everson v. Bd. of Educ., 330 U.S. 1,
8 (1947), provides that “Congress shall make no law
respecting an establishment of religion.” U.S. Const.
amend. I, cl. 1. The three-pronged test set forth by the
Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971),
32 No. 10-2922

“remains the prevailing analytical tool for the analysis
of Establishment Clause claims.” Books v. City of Elkhart
(Books I), 235 F.3d 292, 301 (7th Cir. 2000); see also Sherman
ex rel. Sherman v. Koch, 623 F.3d 501, 507 (7th Cir. 2010)
(applying the Lemon test), petition for cert. filed, 79 U.S.L.W.
3578 (U.S. Mar. 21, 2011) (No. 10-1191); Milwaukee
Deputy Sheriffs’ Ass’n v. Clarke, 588 F.3d 523, 527 (7th Cir.
2009) (same). Under the Lemon test, a governmental
practice violates the Establishment Clause if it (1) lacks
a legitimate secular purpose; (2) has the primary effect of
advancing or inhibiting religion; or (3) fosters an exces-
sive entanglement with religion. See Lemon, 403 U.S. at 612-
13. Here, the Does maintain that the practice of
holding high school commencement ceremonies and
honors convocations in the rented sanctuary of a church
violates the Establishment Clause in several ways: It
coercively imposes religion on graduates and their
families; it communicates a message of governmental
endorsement of religion; it confers control over the physi-
cal setting of public school events to a religious entity;
it directs tax funds to support the propagation of
religion; and it arises out of divisive student votes. We
shall discuss each of these contentions in the course of
our analysis.

1. Coercion
The Does submit that the District’s use of the
Church constitutes governmentally coerced participation
in religion in contravention of the principles of Lee v.
Weisman, 505 U.S. 577 (1992). In Lee, the Supreme Court
No. 10-2922 33

of the United States held that the delivery of a non-sectar-
ian prayer at a high school graduation ceremony violated
the Establishment Clause because it indirectly coerced
students to join in on a state-directed religious exercise.
The Court stated, “It is beyond dispute that, at a minimum,
the Constitution guarantees that government may not
coerce anyone to support or participate in religion or its
exercise, or otherwise act in a way which ‘establishes a
[state] religion or religious faith, or tends to do so.’” Id. at
587 (alteration in original) (quoting Lynch v. Donnelly, 465
U.S. 668, 678 (1984)).
Although the exact relationship of the principle an-
nounced in Lee to the Lemon test is unclear,1 7 we need not

17
Some courts have understood Lee to announce a new, some-
what limited coercion test that should be applied inde-
pendently of Lemon. See, e.g., Modrovich v. Allegheny Cnty., 385
F.3d 397, 400 (3d Cir. 2004) (holding the coercion test inap-
plicable to a challenge to a Ten Commandments plaque in a
courthouse); Doe ex rel. Doe v. Beaumont Indep. Sch. Dist., 173
F.3d 274, 285 (5th Cir. 1999) (stating that an alternative to the
Lemon test, “which the Court set forth in Lee, is the so-called
‘Coercion Test,’ under which school-sponsored religious
activity is analyzed to determine the extent, if any, of its
coercive effect on students”); cf. Freedom from Religion Found. v.
Hanover Sch. Dist., 626 F.3d 1, 7 & n.14 (1st Cir. 2010) (describing
the Lemon test, the “endorsement analysis” and the “coercion
analysis” as “three interrelated analytical approaches” and
noting the “abundance of commentary from courts and others
as to the relationship between these three analytical ap-
(continued...)
34 No. 10-2922

resolve that issue today. See Freedom from Religion Found.
v. Hanover Sch. Dist., 626 F.3d 1, 7 & n.14 (1st Cir. 2010),
cert. denied sub nom. Freedom from Religion Found. v. United
States, ___ S. Ct. __, No. 10-1214, 2011 WL 1322972 (U.S.
June 13, 2011). The legal principles that we must apply
to resolve the question before us are clear. “[W]hen a
plaintiff claims that the state is coercing him or her to
subscribe to religion generally, or to a particular
religion, only three points are crucial: first, has the state
acted; second, does the action amount to coercion; and

17
(...continued)
proaches” (internal quotation marks omitted)), cert. denied
sub nom. Freedom from Religion Found. v. United States, ___
S. Ct. ___, No. 10-1214, 2011 WL 1322972 (U.S. June 13, 2011).
Yet, as Justice Blackmun’s concurring opinion in Lee demon-
strates, it is conceptually possible to view coercion as part of an
inquiry into the primary effect or the message of endorsement
sent by a practice. See Lee v. Weisman, 505 U.S. 577, 604 (1992)
(Blackmun, J., concurring) (“Government pressure to partic-
ipate in a religious activity is an obvious indication that the
government is endorsing or promoting religion.”). Some
courts therefore have examined the coercive nature of a gov-
ernment practice in determining its primary effect. See Does 1, 2,
3, 4, & 5 v. Enfield Pub. Schs., 716 F. Supp. 2d 172, 185-86
(D. Conn. 2010) (citing cases taking different approaches
but holding that “[b]oth because it seems a more focused
approach, and because it appears to be in accordance with the
Second Circuit’s view, the court will address ‘coercion’ as
one indication of effect . . . and not as an entirely separate
inquiry” (citing DeStefano v. Emergency Hous. Grp., Inc., 247
F.3d 397, 411 (2d Cir. 2001))).
No. 10-2922 35

third, is the object of the coercion religious or secular?”
Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996).
The Does contend that graduates and other attendees
are coerced into participating in religion in two ways.
First, they are compelled to enter a “sacred space.” Appel-
lants’ Br. 29. In their view, entering such a space is in
itself a religious activity: “Even when no formal religious
worship service is underway, a church (and especially
its sanctuary) remains an inherently religious setting—
the physical embodiment of the faith community it
shelters—and so, to many faiths, a house of worship and
all its constituent parts are objects of veneration.” Id.
Second, attendees are coerced into “view[ing] prominent
religious iconography within [the Church], including a
cross that continually looms above the dais where the
ceremonies take place.” Id. at 33. The Does and amici
submit that symbols can convey persuasive messages,
often very effectively, and coerced exposure to religious
proselytization conveyed by the state or its partners is
no less offensive to the Establishment Clause when
done through symbols rather than through prayers or
Bible readings.
Although the anti-coercion principle expressed in Lee
goes to the very heart of Establishment Clause concerns,
the district court correctly concluded that its strictures
were not violated here. Lee is part of a long line of cases
“dealing with government efforts to ‘coerce anyone to
support or participate in religion or its exercise,’ the
essence of [which] is that the state is somehow forcing
a person who does not subscribe to the religious tenets
36 No. 10-2922

at issue to support them or to participate in observing
them.” Kerr, 95 F.3d at 477 (quoting Lee, 505 U.S. at 587).
Those cases often have involved prayer exercises or
religious instruction in public schools, see, e.g., Sch.
Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) (in-
validating Bible readings and recital of the Lord’s
Prayer in schools); Engel v. Vitale, 370 U.S. 421 (1962)
(invalidating government-composed school prayer pro-
gram), but they also have reached other settings and
other forms of religious compulsion, see, e.g., Torcaso v.
Watkins, 367 U.S. 488, 495 (1961) (striking down a
religious test oath requirement for holding public office
and stating that “neither a State nor the Federal Govern-
ment can constitutionally force a person to profess a
belief or disbelief in any religion” (internal quotation
marks omitted)). Lee’s innovation was not in its announce-
ment of the principle that the state may not coerce religious
belief or participation, but in its more particular holding,
confirmed in Santa Fe Independent School District v. Doe,
530 U.S. 290, 310-12 (2000), that the special vulnerability
of children, subtle social pressures and the positions
of authority held by teachers and school officials
might indirectly coerce students into subscribing to a
religious belief or practice even where the state has not
employed a direct threat of force or punishment to
compel compliance. See Kerr, 95 F.3d at 477-79 (describing
the Court’s jurisprudence); DeStefano v. Emergency Hous.
Grp., Inc., 247 F.3d 397, 411-13 (2d Cir. 2001) (same).
Thus, although we have held that Lee prohibits schools
from compelling students to sit through proselytization
efforts by religious groups during school hours, Berger v.
No. 10-2922 37

Rensselaer Cent. Sch. Corp., 982 F.2d 1160, 1169-71 (7th Cir.
1993), we also have held that Lee prevents a prison from
requiring an inmate to participate in a substance abuse
rehabilitation program “organized around” the acknowl-
edgment of a belief in God and meetings that included
group prayers, Kerr, 95 F.3d at 474-75, 480, and that a
police chief may not pressure a subordinate “to bring
her thinking and her conduct into conformity with the
principles of his own religious beliefs,” Venters v. City
of Delphi, 123 F.3d 956, 970 (7th Cir. 1997).
We do not doubt that symbols can be used to
proselytize or that, in the appropriate circumstances,
coerced engagement with religious iconography and
messages might take on the nature of a religious exercise
or forced inculcation of religion. See Cnty. of Allegheny v.
ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 661 (1989)
(Kennedy, J., concurring in the judgment in part
and dissenting in part) (recognizing that “[s]peech
may coerce in some circumstances” and that “an ob-
trusive year-round religious display [of a cross on city
hall] would place the government’s weight behind an
obvious effort to proselytize on behalf of a particular
religion”); Berger, 982 F.2d at 1170 (holding that the coer-
cion principle was violated where students were forced
to listen to private speakers exhorting them to read the
Bible). However, the Establishment Clause does not
shield citizens from encountering the beliefs or symbols
of any faith to which they do not subscribe. See Linnemeir
v. Bd. of Trs. of Purdue Univ., 260 F.3d 757, 759 (7th Cir.
2001); Tanford v. Brand, 104 F.3d 982, 986 (7th Cir. 1997).
It thus was significant in Lee that the students felt
38 No. 10-2922

coerced, although subtly, to join in the observance of the
invocation and thereby give the impression of adherence.
On this record, however, graduates are not forced—even
subtly—to participate in any religious exercise “or other
sign of religious devotion,” Sherman v. Cmty. Consol. Sch.
Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992), or in any other
way to subscribe to a particular religion or even to
religion in general. They are not forced to take religious
pamphlets, to sit through attempts at proselytization
directed by the state or to affirm or appear to affirm
their belief in any of the principles adhered to by the
Church or its members. Instead, the encounter with
religion here is purely passive and incidental to
attendance at an entirely secular ceremony. The record
does not support the inference that students would
appear to be, or would feel themselves to be, partici-
pating in a religious exercise or subscribing to the beliefs
of the Church. The concerns in Lee are simply inapposite
to the environment described in this record. See Santa Fe,
530 U.S. at 312 (holding that “the delivery of a pregame
prayer has the improper effect of coercing those present
to participate in an act of religious worship” (emphasis
added)); Lee, 505 U.S. at 598 (noting that “the State
has in every practical sense compelled attendance and
participation in an explicit religious exercise” (emphasis
added)); Freedom from Religion Found., 626 F.3d at 13
(holding the coercion inquiry inapplicable to the Pledge
of Allegiance because, unlike in Lee, silence does not
give the impression of “an expression of participation
in the Pledge”); Myers v. Loudoun Cnty. Pub. Schs., 418
F.3d 395, 407 (4th Cir. 2005) (“[A]lthough religious exer-
No. 10-2922 39

cises in public schools, even if voluntary, may violate
the Constitution because they can indirectly coerce stu-
dents into participating, nothing in any of the school
prayer cases suggests the same analysis applies when
the challenged activity is not a religious exercise.”);
Berger, 982 F.2d at 1170 (stating that the distribution of
Gideon Bibles in a school violates the principles of Lee
because “the act of accepting a Bible in front of other
students, with the option of returning it later privately
or choosing not to read it, signals accord with the
Gideons’ beliefs”).
Moreover, because there is no indication that the back-
ground iconography is in any way associated with
the District, that the District directed students to look at
the images or that the District even pointed out the
images, the general impressionability of the students
does not carry the same weight in the analysis. See Santa
Fe, 530 U.S. at 305 (finding that “the ‘degree of school
involvement’ makes it clear that the pregame prayers
bear ‘the imprint of the State and thus put school-age
children who objected in an untenable position’” (quoting
Lee, 505 U.S. at 590)); Good News Club v. Milford Cent. Sch.,
533 U.S. 98, 116 (2001) (stating that although the Court
noted in Edwards v. Aguillard, 482 U.S. 578 (1987), “that
mandatory attendance requirements meant that the
state advancement of religion in a school would be par-
ticularly harshly felt by impressionable students[,] . . . [it]
did not suggest that, when the school was not actually
advancing religion, the impressionability of students
would be relevant to the Establishment Clause issue”);
Tanford, 104 F.3d at 986 (upholding the delivery of an
40 No. 10-2922

invocation at a university commencement because “the
special concerns underlying . . . Lee [were] absent”).
The lack of association of the iconography with the
District is also helpful in analyzing the Does’ contention
that entering a house of worship is a religious activity
because some people consider the act to carry religious
significance. Entering a church may be of religious sig-
nificance to some, but it is not an inherently religious
activity of the sort proscribed by Lee. 1 8 Students, indeed
all citizens in a pluralistic society, encounter religion
and religious symbols in myriad ways in the course
of daily life. These occasions are incidental to other
human activity, and members of the community do not
regard them, in the normal course of daily life, as
requiring any active affirmation or participation on
their part. The community accords them respect because
of their meaning to some of our fellow citizens, and
sometimes they are incorporated into our culture as

18
The Does and amici observe that the adherents of some
faiths are prohibited by their beliefs from entering the place
of worship of a different faith. Under the proper circum-
stances, such an objection could raise a claim under the Free
Exercise Clause, see Otero v. State Election Bd. of Oklahoma, 975
F.2d 738, 741 (10th Cir. 1992), but the subjective beliefs of
some individuals do not automatically render all who enter a
church for a secular purpose participants in an objectively
religious activity.
No. 10-2922 41

reflections of society.1 9 The more appropriate analysis is
to determine whether there is any impermissible gov-
ernmental endorsement of religion. As we shall explain
more fully below, we undertake this analysis by
examining whether the purpose, design, context and
implementation of the encounter with the religious
symbol in fact conveys such an impermissible message
of state endorsement.
We are confirmed in our approach to this analysis by the
Supreme Court’s own approach to cases involving state-
facilitated displays of religious iconography or religious
messages; to address such questions the Court has used
the Lemon test or asked directly if there is an impermis-

19
See Edwards v. Aguillard, 482 U.S. 578, 593-94 (1987); see also
O’Connor v. Washburn Univ., 416 F.3d 1216, 1230 (10th Cir.
2005) (“The Establishment Clause . . . does not compel the
removal of religious themes from public education.”); Books v.
Elkhart Cnty. (Books II), 401 F.3d 857, 868 (7th Cir. 2005) (stating
that “[t]he Establishment Clause is not violated when gov-
ernment teaches about the historical role of religion” and
d i s t i n g u i sh in g b etw een h is t o r i c a l i n s t r u c t i o n a n d
proselytization); Sherman v. Cmty. Consol. Sch. Dist. 21, 980
F.2d 437, 444 (7th Cir. 1992) (noting that “[s]tudents not only
read books that question or conflict with their [religious] tenets
but also write essays about them and take tests—questions
for which their teachers prescribe right answers, which the
students must give if they are to receive their degrees”); see
generally Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337,
347 (5th Cir. 1999) (describing permissible uses of “religion
and religious concepts” in school curricula).
42 No. 10-2922

sible endorsement rather than employing an indep-
endent coercion inquiry to analyze state-facilitated dis-
plays of religious iconography or religious messages.
See, e.g., McCreary Cnty. v. ACLU of Kentucky, 545 U.S. 844
(2005) (Ten Commandments display in courthouse);
Cnty. of Allegheny, 492 U.S. 573 (majority opinion) (crèche
and menorah displays on government property);
Edwards, 482 U.S. 578 (law requiring teaching of crea-
tionism in schools); Lynch, 465 U.S. 668 (crèche erected
by city in a private park); Stone v. Graham, 449 U.S. 39
(1980) (per curiam) (display of Ten Commandments on
classroom walls); see also Milwaukee Deputy Sheriffs’ Ass’n,
588 F.3d 523 (sheriff inviting religious group to speak
to subordinates); Books v. Elkhart Cnty. (Books II), 401 F.3d
857, 868 (7th Cir. 2005) (Ten Commandments display
on courthouse lawn); Books I, 235 F.3d 292 (same). We
therefore turn to the Lemon test to guide the remainder
of our analysis.

2. Endorsement
The Does do not contend that the District was
motivated predominantly by a religious purpose in
selecting the Church as the venue for its graduations
and honors convocations. We therefore may pretermit
any discussion of the purpose prong of the Lemon test
and focus our inquiry on the effect and entanglement
prongs.
With respect to the effect prong, we ask, in the con-
text of this case, “irrespective of government’s actual
No. 10-2922 43

purpose, whether the practice under review in fact
conveys a message of endorsement or disapproval.”
Sherman ex rel. Sherman, 623 F.3d at 517 (quotation
marks omitted); see also Cnty. of Allegheny, 492 U.S. at 592.
We make this assessment from the perspective of
“a reasonable person, apprised of the circumstances
surrounding the [practice]” and “familiar with the
history of the government practice at issue.” Milwaukee
Deputy Sheriffs’ Ass’n, 588 F.3d at 528 (quotation marks
omitted).
According to the Does, the setting of the graduation
ceremony inherently conveys a message of endorsement
because it creates an unavoidable symbolic link between
the Church and the District: “[T]he holding of a school
event in a church sanctuary, where an immense cross
is displayed in conjunction with school banners and
above school speakers, sends an unmistakable message
of union between religion and government.” Reply Br. 13.
At the outset, we cannot accept the Does’ assertion that
we should approach this case with an eye to determining
whether all graduation ceremonies held in places of
worship necessarily convey a message of endorsement.
The established principle that “Establishment Clause
jurisprudence remains a delicate and fact-sensitive one,”
Lee, 505 U.S. at 597, requires that we engage in a highly
fact-specific evaluation that avoids bright lines that
proscribe entire areas of interaction and conduct. See, e.g.,
McCreary Cnty., 545 U.S. at 867 (explaining that a prior
case “did not purport to decide the constitutionality of
every possible way the [Ten] Commandments might be
44 No. 10-2922

set out by the government, and under the Establish-
ment Clause detail is key”); Lynch, 465 U.S. at 678 (“In
each case, the inquiry calls for line-drawing; no fixed, per
se rule can be framed.”); Books II, 401 F.3d at 867
(“ ‘Every government practice must be judged in its
unique circumstances to determine whether it con-
stitutes an endorsement or disapproval of religion.’”
(quoting Am. Jewish Cong. v. City of Chicago, 827 F.2d
120, 127 (7th Cir. 1987))); Cmty. Consol. Sch. Dist. 21, 980
F.2d at 444 (“The religion clauses of the first amendment
do not establish general rules about speech or schools;
they call for religion to be treated differently.”).
This fact-specific approach is necessary not only to
ensure that permissible church-state relationships are
permitted to exist, but also to ensure that we remain
vigilant and sensitive to those encounters that do
convey a message of state endorsement. For instance,
following this fact-specific approach, in many cases we
have noted the special danger of endorsement that reli-
gious displays at the seat of government might convey.
We have articulated in those cases a substantial
concern that such displays are “likely to be perceived
by adherents of the controlling denominations as an
endorsement, and by the nonadherents as a disapproval,
of their individual religious choices.” Am. Jewish Cong.,
827 F.2d at 127 (quotation marks omitted); see also Harris
v. City of Zion, 927 F.2d 1401, 1412 (7th Cir. 1991) (stating
that a Latin cross on a municipal seal “presents to
any observer a clear endorsement of all those beliefs
associated with a Latin cross in violation of the Estab-
lishment Clause”).
No. 10-2922 45

Consistently, both our cases and the governing
precedent from the Supreme Court have counseled that
we be particularly sensitive to what Justice Jackson,
albeit in another context, referred to as “the practicalities
and peculiarities of the case.” Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950). For example,
in Zobrest v. Catalina Foothills School District, 509 U.S. 1
(1993), the Court held that public school teachers may
provide specialized instruction to students in religious
schools without necessarily sending a message of endorse-
ment. Zobrest therefore “repudiated” the assumption “that
the presence of a public employee on private
school property creates an impermissible ‘symbolic link’
between government and religion.” Agostini v. Felton,
521 U.S. 203, 224 (1997). “[W]ithout more,” id. at 227,
the Court later explained, such an assumption is un-
founded and “smack[s] of antiquated notions of ‘taint,’”
id. at 223 (quotation marks omitted). See also Books II,
401 F.3d at 869 (holding that, despite “the symbolic
force of exhibiting a religious text at the seat of govern-
ment,” a Ten Commandments display did not have
the primary effect of advancing religion because in
context it communicated an acknowledgment of history
and tradition, not of religious approval); Books I, 235
F.3d at 306-07 (examining the format, setting and sur-
roundings of a Ten Commandments monument in deter-
mining that it sent a message of endorsement); Am.
Jewish Cong., 827 F.2d at 127-28 (stating that “the critical
inquiry is whether, considered in its unique physical
context, the nativity scene at issue in this case communi-
cates a message of government endorsement”). With this
46 No. 10-2922

approach firmly in mind, we now turn to an examina-
tion of the record in this case.
The Does present ample evidence that the Church is
indeed a highly religious and unmistakably sectarian
setting. Christian symbols and messages are permanent
aspects of the building’s structure and decoration; non-
permanent religious messages are present in the lobby
and remain in the pews during the graduation ceremony.
No one could fail to notice the giant cross that hangs over
the dais and “appears in attendees’ line of sight when
they watch” the ceremony. R.56 at 5, ¶ 28. In short, an
objective observer undoubtedly would be aware of the
religious nature of the setting.
Yet the Does offer no evidence to suggest that the
District has in any way associated itself with these
symbols or with the beliefs expressed by the Church or
that any of the religious messages—the materials in the
pews, for instance—were placed there especially for
graduations rather than being standard fare for the
Church’s own activities. Indeed, the content of the grad-
uation ceremonies and the speeches always has
been entirely secular. As such, an objective observer
would understand the religious symbols and messages
in the building and on Church grounds to be part of
the underlying setting as the District found it rather
than as an expression of adherence or approval by the
school. Indeed, the record demonstrates that the gradu-
ates, and by implication many other members of the
audience, such as their parents, knew affirmatively that
the Church simply had been rented for the occasion as
No. 10-2922 47

the preferred venue of the participating graduates. The
record also shows that the venue is rented regularly
to other groups in the community in need of a similar
facility for their gatherings. The observer also might be
aware of efforts taken by the District to minimize the
religious nature of the setting by securing the removal
of non-permanent displays from the dais of the sanctu-
ary, efforts that further distance the District from the
Church’s message. “[W]ithout more,” Agostini, 521 U.S. at
227, the District’s use of a religious facility for a secular
purpose does not irretrievably create a symbolic link
tainting the association of the two entities.
In ACLU of Illinois v. City of St. Charles, 794 F.2d 265
(7th Cir. 1986), a case involving a cross erected on a city
water tower, we stated that, “[w]hen prominently dis-
played on a public building that is clearly marked as
and known to be such, the cross dramatically conveys
a message of governmental support for Christianity,
whatever the intentions of those responsible for the
display may be.” Id. at 271 (emphasis added); see also
Am. Jewish Cong., 827 F.2d at 128 (“Because City Hall is
so plainly under government ownership and control, every
display and activity in the building is implicitly marked
with the stamp of government approval.” (emphasis
added)); Bronx Household of Faith v. Bd. of Educ., ___ F.3d
___, No. 07-5291, 2011 WL 2150974, at *9 (2d Cir. June 2,
2011). The crucial difference here, however, is that City
of St. Charles and similar cases involved religious
displays and activity on public property. Because the
government is presumed to control its own property,
including any displays, iconography or messages deco-
48 No. 10-2922

rating it, religious displays often convey a strong
message that the government endorses the beliefs ex-
pressed in the decorations. See Books I, 235 F.3d at 306.
By contrast, when the government merely makes tempo-
rary use of a private setting—especially a rental for one
day—an observer would not understand the message
necessarily to have been made by, created at the direc-
tion of or expressed with the approval of the state.
The Does nevertheless contend that the District would
not have used the Church and would not have rejected
complaints of offense were it not comfortable with the
Church and its message. See Reply Br. 15 (“[R]egardless
of how the Church compares with other options,
District leaders surely would not have approved use of
the Church if they had been uncomfortable with its reli-
gious nature or message themselves.”); Appellants’ Br. 43
(“Very likely, if the graduations had been held in a
mosque replete with Islamic symbols, and the com-
plaints had come from the Christians who make up
the vast majority of the school community, the District’s
leaders would have moved the graduations long before
this litigation was filed.” (internal citation omitted)).
Such argumentation is speculative and obscures the
crucial analytical question: whether the District’s actions
endorsed the Church’s religious practices and beliefs.
Moreover, the Establishment Clause does not require
the District to refrain from all business relationships
with a church or other religious group simply because
some observers are offended by the group’s beliefs or,
indeed, by religion in general. See Lee, 505 U.S. at 597 (“We
do not hold that every state action implicating religion
No. 10-2922 49

is invalid if one or a few citizens find it offensive. People
may take offense at all manner of religious as well as
nonreligious messages, but offense alone does not in
every case show a violation.”); Linnemeir, 260 F.3d at 759
(refusing to halt performance of a blasphemous play at
a university because “[t]he government’s interest in
providing a stimulating, well-rounded education would
be crippled by attempting to accommodate every
parent’s hostility to books inconsistent with their
religious beliefs”).
In this case, the District has not sponsored any
religious ceremony or display; instead, it has rented a
building. There is no realistic endorsement of religion
by the mere act of renting a building belonging to a
religious group, especially when the venue is rented
to other groups on a regular basis.
The remainder of the Does’ evidence also does not
establish that the District’s conduct has the primary
effect of endorsing religion. For example, the Does
observe that Superintendent Gibson and Board President
Gehl are both members of the Church, which, they
believe, sends a message of favoritism. To that end, they
point to Does 1, 2, 3, 4, & 5 v. Enfield Public Schools, 716
F. Supp. 2d 172 (D. Conn. 2010), which held that the
staging of graduation in a church violated the Establish-
ment Clause. In Enfield, however, there was significant
evidence that a school district official and a religious
group actively lobbied the school board to steer the
graduation to the church because it was a church. See id.
at 193-95. Viewed in context, the court held, the decision
50 No. 10-2922

hardly could fail to convey a message of endorsement.
By contrast, in this case the Does present no evidence of
a similar effort. Quite the opposite: With the exception
of Superintendent Gibson’s approval of the decisions
made by the individual schools, neither official had
anything to do with the selection of the Church. Mr. Gehl
did not even join the school board until several years
after Central first rented the Church. The most the Does
can say is that Superintendent Gibson’s failure to veto the
school-level decisions after receiving complaints betrays
bias. 20 The significance of such a supposed conflict-of-
interest pales in light of the utter lack of any religious
purpose underlying the District’s decision and the over-
whelming evidence that the District desired to make
use only of the Church’s material amenities. The evidence
in the record establishes that the District selected the
Church for entirely secular reasons. Students and
officials alike desired a venue with more amenities than
East’s or Central’s gymnasiums, which were hot, crowded
and uncomfortable. The student officers proposed—and
subsequent classes repeatedly selected—the Church,
which, although not the only adequate venue, is by
all accounts a superior one. It is within the school
district; it has ample free parking, air conditioning

20
See Appellants’ Br. 43 (“And even if the membership of
District leaders in the Church was not the main reason the
District’s graduations were moved to the Church, surely those
Church memberships make it difficult, if not impossible,
for District leaders to be truly objective in assessing com-
plaints about the use of the Church for the graduations.”).
No. 10-2922 51

and comfortable seating; and, at approximately $2,000
per graduation, its price is lower than that of many
other venues. Even using the school gymnasiums ap-
parently would have been more expensive. See R.22
at 3, ¶ 12.
We next address the Does’ assertion that the District’s
use of the Church excessively entangles the state with
religion by allowing the Church to control the setting
and atmosphere of a school ceremony, by embroiling
the District in discussions about removing religious
symbols from the sanctuary, by using government funds
to support the Church and by fostering divisiveness
within the school community. Whether considered as an
independent prong of the Lemon test or as an aid to de-
termining the primary effect of a practice, the entangle-
ment question requires the District to establish “ ‘sponsor-
ship, financial support, and active involvement of the
sovereign in religious activity.’” Vision Church, United
Methodist v. Vill. of Long Grove, 468 F.3d 975, 995 (7th
Cir. 2006) (quoting Jimmy Swaggart Ministries v. Bd. of
Equalization of California, 493 U.S. 378, 393 (1990)). The
“Court ‘[has] always tolerated some level of involve-
ment between’ the state and religion,” and “ ‘[e]ntangle-
ment must be excessive before it runs afoul of the Estab-
lishment Clause.’” Nelson, 570 F.3d at 881 (alterations
in original) (quoting Agostini, 521 U.S. at 233) (internal
quotation marks omitted). We have described as
“[t]he general rule . . . that, to constitute excessive entan-
glement, the government action must involve intrusive
government participation in, supervision of, or inquiry
52 No. 10-2922

into religious affairs.” Vision Church, 468 F.3d at 995
(quotation marks omitted).
In this case, there is no evidence that the Church or
its members have attempted to control or influence the
setting or the content of the ceremony, and there is no
evidence that the District used graduation events as a
way to get the Church’s message out.2 1 Any interaction
between the Church and the District regarding the
setting is too de minimis to cause any real concern. See id.
(stating that “the advancement or inhibition of religion
must be more than de minimis”); see also Bronx Household
of Faith, 2011 WL 2150974, at *14 (“Without doubt there
are circumstances where a government official’s involve-

21
Although it is undisputed that, in 2002, someone handed
out religious literature in the lobby, the Does make no allega-
tions and present no evidence that the person handing out
literature was affiliated with Church leadership or with the
District or that the practice was encouraged, condoned or
continued in later years by the District. Without more, such
an isolated incident does not send a message that the
District endorses the Church or its beliefs, nor does it result
in sponsorship or active involvement with the affairs of the
Church. Relatedly, although the presence of Church officials
at information booths in the lobby could be problematic if
those booths actively had been used to distribute religious
literature or to proselytize, the Does again present no
evidence that the persons manning the booths actually did so.
Without any such evidence, there is no way to infer that the
staffers were stationed there to proselytize rather than to
give directions to attendees.
No. 10-2922 53

ment in matters of religious doctrine constitutes exces-
sive government entanglement. But it does not follow . . .
that the mere act of inspection of religious conduct is
an excessive entanglement.” (internal citation omitted));
Otero v. State Election Bd. of Oklahoma, 975 F.2d 738, 740-41
(10th Cir. 1992) (holding that the use of a church as a
polling place did not result in an excessive entangle-
ment with religion where the church provided “a conve-
niently located place that can accommodate the voting
public” and there was no showing “that an excessive
rent [was] being paid . . . or that the defendants are at-
tempting to promote a particular religion”). The district
court also concluded that the use of taxpayer funds to
rent the Church was not impermissible because it was
a standard fee-for-use arrangement. We agree. Addi-
tionally, the District’s requests that the Church remove
religious symbols from the dais—done at the behest of
the Does—does not by itself result in the sort of
intrusive supervision and interference by government
authorities that could come even close to the level of
excessiveness. See Agostini, 521 U.S. at 233. We also
cannot accept the Does’ contention that submitting the
choice of venue for graduation to an advisory student
vote provides an impermissible occasion for creating
division along religious lines. The election here is over
the choice of venue for a secular public high school aca-
demic ceremony. No one suggests that the content
of the ceremony was anything other than secular.
The vote here is therefore a far cry from the vote at
issue in Santa Fe to determine whether to have a
religious invocation and to select a student to deliver
54 No. 10-2922

the prayer. There, the school policy “invite[d] and
encourage[d] religious messages.” Santa Fe, 530 U.S. at 306.
Finally, we emphasize that our conclusion in this
case rests on the record before us. Indeed, the parties
represented at oral argument that they had agreed to
proceed to summary judgment without taking any dis-
covery. As we have explained, however, Establishment
Clause cases are decided on their unique circumstances,
and, if we are to remain faithful to the direction of the
Supreme Court and to our own case law, we must decide
the case on the record before us. Whether a practice
violates the Establishment Clause is largely a legal
issue, but it is a legal issue that is highly dependent on
the facts of each case. Here, the Does present no evi-
dence that the District sponsors the Church’s beliefs or
mission. The record before us therefore does not permit
a conclusion that the District’s choice of venue has the
effect of conveying a message of endorsement of the
Church or its views or results in an enduring and
tangled relationship between the District and the
Church. Accordingly, the district court properly granted
summary judgment in favor of the District on the Does’
Establishment Clause claim.

Conclusion
The judgment of the district court is affirmed.
A FFIRMED
No. 10-2922 55

F LAUM, Circuit Judge, dissenting in part. I agree that
the plaintiffs have standing and that the district court
committed no error by allowing them to proceed anony-
mously. Similarly, as a general matter, I take no issue
with the majority’s reliance on Lemon v. Kurtzman’s frame-
work for resolving establishment clause cases. See 403
U.S. 602, 612-13 (1971).1 Of course, the touchstone for
establishment clause challenges remains “the principle
that the First Amendment mandates government
neutrality between religion and religion, and between
religion and nonreligion.” McCreary County Kentucky, v.
ACLU, 545 U.S. 844, 860 (2005) (quotation marks omit-
ted). The determination is case-specific: whether a par-
ticular practice violates the establishment clause is “in
large part a legal question to be answered on the basis
of judicial interpretation of social facts” which “must
be judged in their unique circumstances.” Santa Fe Indep.
Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000).
I believe that conducting a public school graduation
ceremony at a church—one that among other things
featured staffed information booths laden with religious
literature and banners with appeals for children to join
“school ministries”—runs afoul of the First Amendment’s
establishment clause as applied to the states via the

1
One of our panel members has observed that the Lemon
framework is like an opera star that “go[es] on singing after
being shot, stabbed, or poisoned.” United States v. Booker,
375 F.3d 508, 516 (2004) (Easterbrook, J.).
56 No. 10-2922

Fourteenth Amendment’s due process clause.2 In my view,
that conclusion is consistent with well established doctrine
prohibiting school administrators from bringing church
to the schoolhouse. E.g., People of State of Illinois ex rel.
McCollum v. Bd. of Educ. of Sch. Dist. No. 71, Champaign
County, Illinois, 333 U.S. 203, 211-12 (1948) (religious
instruction in public schools held unconstitutional). The
same result should obtain when administrators bring
seminal schoolhouse events to a church—at least to one
with the proselytizing elements present in this case. The
constitutional flaw with such activity is that it neces-
sarily conveys a message of endorsement. Moreover,
the Supreme Court’s “coercion cases,” Lee v. Weisman, 505
U.S. 577 (1992) and Santa Fe, cannot be meaningfully
distinguished—both because endorsement is intrinsically
coercive and because there was coerced activity in
this case.
Establishment clause jurisprudence has long guarded
against government conduct that has the effect of pro-
moting religious teachings in school settings, and the
case law has evinced special concern with the receptivity
of school children to endorsed religious messages. In

2
Although I focus my discussion on the school district’s
practice of holding graduation ceremonies at Elmbrook
Church, I believe that the same constitutional defects inhere
in the district’s use of the church for awards ceremonies. See
Santa Fe, 530 U.S. at 311 (reasoning that conducting invoca-
tions at high school football games did not escape the
teachings of Lee v. Weisman because extracurricular activities
are “part of a complete educational experience”).
No. 10-2922 57

Stone v. Graham, 449 U.S. 39 (1980) (per curiam), for in-
stance, the Supreme Court barred enforcement of a Ken-
tucky statute requiring the posting of a copy of the Ten
Commandments on the wall of each public school class-
room within the state. The Court’s brief discussion con-
cluded that the statute ran afoul of Lemon’s first prong,
whether the legislation had a secular purpose. Id. at 41
(concluding that the purpose for posting the command-
ments was “plainly religious in nature”). In reaching
that conclusion, the Court entered into a discussion of
Lemon’s second prong, whether the primary effect of
government conduct advances or inhibits religion. The
Court reasoned that “[i]f the posted copies of the Ten
Commandments are to have any effect at all, it will be
to induce the school children to read, meditate upon,
perhaps to venerate and obey, the commandments.” Id.
at 42. I perceive essentially the same problem in the
circumstances of this case.
Displaying religious iconography and distributing
religious literature in a classroom setting raises constitu-
tional objections because the practice may do more
than provide public school students with knowledge of
Christian tenets, an obviously permissible aim of a
broader curriculum. E.g., Edwards v. Aguillard, 482 U.S. 578,
608 (1987) (Powell, J., concurring). The concern is that
religious displays in the classroom tend to promote
religious beliefs, and students might feel pressure to
adopt them. The concern was front and center in Stone
and apparent to one degree or another in the Supreme
Court’s school prayer cases. See Wallace v. Jaffree, 472
U.S. 38 (1985) (Alabama law authorizing a moment of
58 No. 10-2922

silence for meditation or voluntary prayer held uncon-
stitutional); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S.
203 (1963) (opening exercises featuring Bible recitation and
reading of Lord’s prayer held unconstitutional); Engel v.
Vitale, 370 U.S. 421 (1962) (prescribed daily prayer held
unconstitutional). The same problem attends pervasive
displays of iconography and proselytizing material at a
public secondary school graduation.
In this case, high school students and their younger
siblings were exposed to graduation ceremonies that put
a spiritual capstone on an otherwise secular education.
Literally and figuratively towering over the graduation
proceedings in the church’s sanctuary space was a 15- to
20-foot tall Latin cross, the pre-eminent symbol of Chris-
tianity. That symbol “carries deeply significant meaning
for those who adhere to the Christian faith.” Salazar v.
Buono 130 S. Ct. 1803, 1836 n. 8 (2010) (Stevens, J., dis-
senting). Moreover, it is a symbol that invites veneration
by adherents. E.g., 2 St. Thomas Aquinas, S UMMA
T HEOLOGICA, q. 25, art. 3 at 2157 (Benzinger Bros., 1947).
The cross, like many symbols, is “pregnant with expressive
content.” See Texas v. Johnson, 491 U.S. 397, 405 (1989). It
acts as a “short cut from mind to mind,” West Virginia
State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943), for
adherents who draw strength from it and for those who
do not ascribe to Christian beliefs. Although the setting
in which a symbol is displayed can shape its message,
cf. Buono, 130 S. Ct. at 1811 (plurality opinion) (stating
that the purpose and intent of a Latin cross placed on
an outcropping in the desert was “to honor American
soldiers who fell in World War I”), there is no doubt that
No. 10-2922 59

a sectarian message is conveyed by a cross prominently
displayed in a house of worship. See also McCreary
County, 545 U.S. at 868 (stressing the importance of the
context in which a “contested object appears”) (quoting
County of Allegheny v. ACLU, Greater Pittsburgh Chapter,
492 U.S. 573, 595 (1989) (opinion of Blackmun, J.)); Van
Orden v. Perry, 545 U.S. 677, 701 (2005) (Breyer, J., concur-
ring) (discussing contexts in which Ten Commandments
displays might appear).
What is more, Elmbrook Church’s sizeable cross was
not the only vehicle for conveying religious messages
to graduation attendees. Upon passing through the
exterior doors of the church, attendees proceeded into a
lobby that contained numerous religious materials. Those
materials included pamphlets for “middle school” and
“high school” ministries. The middle school ministry
pamphlet stated, “We are calling students to live and
love like Jesus.” As the majority reports, ante at 7 n. 7,
a poster on the wall asked, “Hey Jr. Highers! Who Are
Your Heroes?” and depicts pop culture icons alongside
Jesus Christ. Anticipating the desired answer to the
poster’s question, there were several stations in-
dicating that children and students (there were labels)
could obtain religious literature tailored to them.
Among the banners that have been draped from the
lobby’s ceiling during graduation ceremonies is one that
read “Children’s Ministry: Leading Children to a Trans-
forming Life in Christ.” Moreover, all 360 degrees of the
lobby’s substantial, circular information booth were
stocked with religious pamphlets. It was staffed during
at least some of the school district’s graduation cere-
60 No. 10-2922

monies, and the literature was readily accessible even
without the staff presence. Returning to the sanctuary
itself, which is where the ceremonies took place, the
pews were supplied with Bibles, hymnals, and additional
informational literature. Children in attendance could
find “scribble cards” in the pews on which “God’s Little
Lambs” could draw. Anyone could partake of the cards
soliciting membership in the church. During at least one
graduation ceremony, church members passed out reli-
gious literature directly to audience members. Put
simply, the environment was pervasively Christian, ob-
viously aimed at nurturing Christian beliefs and
gaining new adherents among those who set foot inside
the church.
Regardless of the purpose of school administrators 3 in
choosing the location, the sheer religiosity of the space
created a likelihood that high school students and their
younger siblings would perceive a link between church
and state. That is, the activity conveyed a message of
endorsement. High school graduations enjoy an iconic

3
Lemon’s purpose inquiry has rarely proved dispositive,
McCreary County, 545 U.S. at 859, and the favorable features
of the church, such as its space and comfort, do not drive the
ultimate inquiry into the constitutionality of its use as a high
school graduation venue. See Lemon, 403 U.S. at 625 (noting
that though taxpayers have been spared considerable
expense through the teaching efforts of churches, the “benefits
of these schools . . . are not the issue . . . . The sole question
is whether state aid to these schools can be squared with
the dictates of the Religion Clauses”).
No. 10-2922 61

place in American life. Lee, 505 U.S. at 583. Given their
centrality, the presence of religious iconography and
literature is likely to prove particularly powerful, in-
dicating to everyone that the religious message is
favored and to nonadherents that they are outsiders.
See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 9 n.1 (1989)
(quoting Wallace, 472 U.S. at 38 (O’Connor, J., concurring)).
Here, the church was not just adorned with its own
symbols, it was draped in the high schools’ decorations.
Banners for the high schools were displayed in the
lobby and in the sanctuary, mixed in with the church’s
religious decor and literature. In the sanctuary, the
high schools’ names were projected onto a large screen
adjacent to the Latin cross. Combined with presence of
the Church’s pamphlets for its “school” ministries, the
setting would have implied to nonadherents in at-
tendance that the school district placed its imprimatur
on Elmbrook Church’s message. See Santa Fe, 530 U.S.
at 307-08 (remarking on the intermixing of an invoca-
tion with the accouterments and hallmarks of high school
life and concluding that “the listening audience must
perceive the pregame message as a public expression of
the views of the majority of the student body delivered
with the approval of the school administration”).
The Supreme Court’s decisions in Lee and Santa Fe
cannot be meaningfully distinguished on the ground that
the school district did not coerce overt religious activity.
Lee, 505 U.S. at 605 n.6 (Blackmun, J., concurring) (ob-
serving that as a practical matter “any time the govern-
ment endorses a religious belief there will almost always
be some pressure to conform”). First, coercion has
62 No. 10-2922

never been the sine qua non of an establishment clause
violation. Santa Fe, 530 U.S. at 313-14 (noting that
coercion was not the Court’s sole concern and that the
establishment clause may be “eroded” in “myriad,
subtle ways”); Comm. for Public Educ. & Religious Liberty
v. Nyquist, 413 U.S. 756, 786 (1973). Moreover, although
Lee and Santa Fe focus on the problem of coerced
religious activity, it is a mistake to view the coercion at
issue in those cases as divorced from the problem of
government endorsement of religion in the classroom
generally. In fact, they are two sides of the same coin:
“When the power, prestige and financial support of
government is placed behind a particular religious
belief, the indirect coercive pressure upon religious
minorities to conform to the prevailing officially ap-
proved religion is plain.” Wallace, 472 U.S. at 60 n.51
(alteration omitted) (quoting Engel, 370 U.S. at 430). And
government efforts at shaping religious views may
prove effective over time. Lee, 505 U.S. at 592; cf. also A
Letter to Richard Burke, Esq., on Protestant Ascendency in
Ireland, in vol. VI W ORKS OF THE R IGHT H ONORABLE
E DMUND B URKE 395 (rev. ed. 1866) (“Man and his con-
science cannot always be at war.”). The fact that gradua-
tion attendees need not do anything but participate in
the graduation ceremony and take advantage of religious
offerings if they so choose does not rescue the practice.
What is more, there is an aspect of coercion here. It is
axiomatic that “[n]either a state nor the Federal Govern-
ment . . . can force nor influence a person to go to or
to remain away from church against his will . . . .” Everson
v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947). The
No. 10-2922 63

first principle is violated when the government directs
students to attend a pervasively Christian, proselytizing
environment. Cf. County of Allegheny, 492 U.S. at 664
(Kennedy, J., concurring in part and dissenting in
part) (observing in the context of crèche displays that
“[p]assersby who disagree with [their] message[s] . . . are
free to ignore them, or even to turn their backs, just as
they are free to do when they disagree with any other
form of government speech”); Wallace, 472 U.S. at 72
(O’Connor, J., concurring) (noting that under an appro-
priately crafted moment of silence law a student “who
objects to prayer . . . is not compelled to listen to the
prayers or thoughts of others”). Once the school district
creates a captive audience, the coercion inherent in en-
dorsement can operate. When a student who holds minor-
ity (or no) religious beliefs observes classmates at
a graduation event taking advantage of Elmbrook
Church’s offerings or meditating on its symbols (or
posing for pictures in front of them) or speaking with
its staff members, “[t]he law of imitation operates,”
Wallace, 472 U.S. at 60 n.51, and may create subtle
pressure to honor the day in a similar manner. See also
id. at 81 (O’Connor, J., concurring) (where children are
concerned, government endorsement “is much more
likely to result in coerced religious beliefs”). The only
way for graduation attendees to avoid the dynamic is to
leave the ceremony. That is a choice, Lee v. Weisman
teaches, the establishment clause does not force students
to make. See also McCreary County, 545 U.S. at 881-82
(O’Connor, J., concurring) (“Free people are entitled to
free and diverse thoughts, which government ought
neither to constrain nor to direct.”).
64 No. 10-2922

The effect of endorsement created by the school
district’s practice is not diminished by the explanation
that the space was rented and school officials could
exercise less control over the church than they could
over a schoolhouse. The argument provides only superfi-
cial appeal. The point appears most cogent with respect
to the church’s cross, although the church possessed
means of covering the symbol. The point appears less
cogent with respect to other aspects of the church which
might have been easily modified to render the space
more inviting to others. This mode of distinguishing,
however, would have us look at the issue of control in
an exceedingly narrow manner. The critical facts should
be that school administrators effectively required atten-
dance, because graduations are not truly optional, see
Lee, 505 U.S. at 595, and selected the venue. See Abington
Twp., 374 U.S. at 222 (the neutrality required by the estab-
lishment clause aims at preventing church and state
from acting in concert such that government support
is “placed behind the tenets of one or of all orthodoxies”);
cf. also Lamb’s Chapel v. Center Moriches Union Free Sch.
Dist., 508 U.S. 384, 395 (1993) (no establishment clause
concern for church group to use school space for an
event where the district created a public forum and
the event would have taken place outside of school
hours and without school sponsorship). Nor is the
effect diminished by the administrators’ mechanism
for choosing the graduation site. The record indicates
that, following the results of student elections, the princi-
pals of the high schools made the ultimate decisions
on where to hold graduation. A “student election does
No. 10-2922 65

nothing to protect minority views but rather places the
students who hold such views at the mercy of the major-
ity.” Santa Fe, 530 U.S. at 304; see also McCreary County,
545 U.S. at 884 (O’Connor, J., concurring) (“[W]e do not
count heads before enforcing the First Amendment.”).
None of this is to suggest that school officials should
have exercised a higher degree of control over the
church’s environment, scrubbing it of religious symbols
or working to tailor its message to a secular audience.
Such a course would have run afoul of Lemon’s exces-
sive entanglement prong. See Bowen v. Kendrick, 487 U.S.
589, 615-18 (1988). Instead, school administrators
should have examined the space that students voted for
and recognized that it was not an appropriate location
for holding a public high school graduation ceremony.
In sum, if constitutional doctrine teaches that a school
cannot create a pervasively religious environment in
the classroom, Wallace, 472 U.S. 38; Stone, 449 U.S. 39;
Abington Twp., 374 U.S. 203; Engel, 370 U.S. 421, or at
events it hosts, Santa Fe, 530 U.S. 290; Lee, 505 U.S. 577, it
appears overly formalistic to allow a school to engage
in identical practices when it acts as a short-term lessee.
Lee, 505 U.S. at 595 (“Law reaches past formalism.”).
The same risk that children in particular will perceive
the state as endorsing a set of religious beliefs is
present both when exposure to a pervasively religious
environment occurs in the classroom and when govern-
ment summons students to an offsite location for
important ceremonial events.
66 No. 10-2922

Determining that the school district operated outside
permissible constitutional bounds should not be equated
with expressing hostility toward Elmbrook Church or
its beliefs. The First Amendment, via its free exercise
clause, guarantees that government will not impinge
on the freedom of individuals to celebrate their faiths, in
the day-to-day, or in life’s grand moments. Without
question, that is a desirable goal. Whether the event is
a meal, a graduation, or a funeral, a signpost or a
diversion, sincerely held religious beliefs can remind
one to give thanks, spur reflection, or provide emotional
rescue in dark days. Religion can lead one to perform
works that benefit the community or meditate on what
it means to live the good life. Secular belief systems,
of course, can serve those ends, too, e.g., Aristotle,
N ICHOMACHEAN E THICS (J. E. C. Welldon trans., 1923);
Seneca, On the Shortness of Life, in I A D L UCILIUM
E PISTULAE M ORALES 322 (Richard M. Gummere trans.,
1918), and the establishment clause reinforces the
promise of the free exercise clause by prohibiting the
government from influencing how a person relates to
the universe. “A state-created orthodoxy puts at grave
risk that freedom of belief and conscience which are the
sole assurance that religious faith is real, not imposed.”
Lee, 505 U.S. at 592; see also McCreary County, 545 U.S. at
883 (O’Connor, J., concurring).
I conclude that the practice of holding high school
graduation ceremonies at Elmbrook Church conveys
an impermissible message of endorsement. Such endorse-
ment is inherently coercive, and the practice has had
the unfortunate side effect of fostering the very divisive-
No. 10-2922 67

ness that the establishment clause was designed to
avoid. Therefore, I respectfully dissent.

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