Three years ago the U.S. Supreme Court ended Does v. School District of Elmbrook by declining to hear an appeal from the district regarding its hosting of graduation ceremonies in a church.
Last week, Elmbrook moved toward not taking a shot at round two.
In December, Americans United for Separation of Church and State sent a letter addressed to Elmbrook Superintendent Mark Hansen and Brookfield Central High School Principal Brett Gruetzmacher regarding the school's Annual Concert of Sacred Music.
The concert was regularly held in St. Mary's Visitation Parish in Elm Grove and had been for decades.
"We have received a complaint regarding Brookfield Central High School's 'Annual Concert of Sacred Music,'" the letter read. "The church was replete with uncovered religious iconography, including a large crucifix displayed directly behind the performing students as well as a screen with images of haloed religious figures."
The letter went on to criticize the choice of music performed at the concert, such as "Do You Hear What I Hear?" and "O Holy Night."
"As Elmbrook Schools well knows, hosting a public-school event in a religious environment violates the Establishment Clause of the First Amendment to the U.S. Constitution," the letter read. "It is our hope that we can resolve this matter without the need for another round of costly litigation."
This is not the first time Elmbrook has been challenged by Americans United for Separation of Church and State. The Washington, D.C.-based group previously won a case against the district in 2012 after the 7th Circuit U.S. Court of Appeals ruled that there was a violation of the separation of church and state when Elmbrook held high school graduation ceremonies in Elmbrook Church.
"After consulting with our own legal counsel, we did make the recommendation and worked with the Brookfield Central staff to relocate to the Shattuck Auditorium at Carroll University," Elmbrook Superintendent Mark Hansen said.
Hansen noted that Brookfield East High School currently hosts a concert during the holiday season at Shattuck and that the venue is able to accommodate attendance that might not be able to fit in facilities at the Sharon Lynne Wilson Center for the Arts.
All five members of the Elmbrook School Board expressed opposition to Americans United for Separation of Church and State's stance.
"Students can express faith in school unless it's disruptive or coercive, and this is concert is not disruptive or coercive. Students and teachers can discuss their influence as long as it's objective rather than devotional," school board at-large member Scott Wheeler said. "As you look at our music departments, it's a well-balanced amount of music from a variety of genres, cultures and traditions. And if we're going to sign music and play music, certainly some of that music is going to be religious in nature. So, it makes me a little sad to move the concert."
Area III board member Thomas Gehl questioned the validity of Americans United's arguments and lamented the manner in which discussion on the subject was had.
"I sincerely wish that instead of hearing only these comments, you could hear those arguments from those who would make them," Gehl said. "I wish we could do so in this room so that such matters could be openly debated. We are not afforded this luxury. The plaintiffs remain shrouded in anonymity and their attorneys remained ensconced in their offices in Washington D.C."
Elmbrook School Board Vice President and Area IV Member Jean Lambert joined others on the board in acknowledging that while she did not agree on a personal level with moving the concert, she believes the district entering into a second legal battle with Americans United is not the right course of action.
"I think it's important to stand up for what you believe — and I've taught my kids that — but I've also taught them to be tolerant, to be understanding of and try to appreciate the different facets of society that come about because we are all different," Lambert said. "That said, the threat of litigation, the expense that would be faced by the district really forces me to set aside my beliefs and my sadness about this whole affair and to agree that we will move the concert from St. Mary's over to Shattuck Auditorium."
Americans United for Separation of Church and State Staff Attorney Ian Smith said the organization is pleased with the decision to move the concert, but noted that the issue may not be finished.
"We're certainly happy that they've chosen to move the concert," Smith said. "We're still waiting to hear from them formally hopefully addressing the issue of the content, because it was a sacred music concert and in addition to the concerns of the venue, we also had concerns of the content."
Smith said Elmbrook agreeing to a new venue but not changing the concert's content might cause Americans United to continue pursuing the issue.
"We'll certainly look into it," Smith said. "It's two separate things. Changing the venue alleviates the violation that the venue caused. The content is a different issue."