In a somewhat surprising move, the U.S. Supreme Court today denied the Elmbrook (Wisconsin) School District’s petition for a writ of certiorari in Elmbrook School District v. Doe, No. 12-755, over the dissents of Justices Scalia and Thomas. The School District petitioned from the decision of an en banc panel of the United States Court of Appeals for the Seventh Circuit that Elmbrook violated the First Amendment Establishment Clause when it held graduation events for many years in the auditorium of Elmbrook Church. That en banc decision had in turn overturned the decision of the original panel in the case finding no Establishment Clause violation.
The petition was originally filed in December 2012, but was held over for the 2013-2014 Supreme Court term, apparently because the Court granted cert in the government prayer case, Town of Greece v. Galloway, No. 12-696. The Court decided Town of Greece on May 5, 2014, reversing the decision of the Second Circuit by a 5-4 vote and holding in an opinion by Justice Kennedy that the town’s practice of opening its town board meetings with a prayer offered by members of the clergy does not violate the Establishment Clause. The Elmbrook parties filed supplemental briefing in early May about the impact of Town of Greece, and there was considerable speculation whether in light of Town of Greece the Supreme Court might grant cert in Elmbrook or at least grant, vacate, and remand.
Today’s order puts that speculation to rest and leaves the Seventh Circuit’s decision intact—a result that prompted Justice Scalia to pen a seven-page dissent, joined by Justice Thomas. The dissent describes the holding in Town of Greece and states that “[i]t may well be, as then-Chief Judge Easterbrook [of the Seventh Circuit] suggested [in an opinion dissenting from the en banc panel’s decision], that the decision of the Elmbrook School District to hold graduations under a Latin cross in a Christian church was ‘unwise’ and ‘offensive.’ But Town of Greece makes manifest that an establish of religion it was not.” The dissent argues that under the circumstances, if a grant of cert was not warranted, then granting, vacating, and remanding the Seventh Circuit’s decision was.
Justice Scalia’s dissenting view, while interesting, is likely to provide little solace to the School District, which potentially now faces an effort by the Doe parties to recover more than $800,000 in fees for legal services incurred even before the Supreme Court appeal was filed.