Federal appellate court rules South Carolina district’s policy of awarding academic credit for off-campus religious instruction is constitutional
Moss v. Spartanburg Cnty. Sch. Dist. Seven, No. 11-1448 (4th Cir. Jun. 28, 2012)
Abstract: A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit (MD, NC, SC, VA, WV) has affirmed a federal district court’s decision granting summary judgment to a South Carolina school district on the ground that its released time policy allowing students to earn academic credit for off-campus religious instruction does not violate the First Amendment’s Establishment Clause. After concluding that only one of the three plaintiffs had standing, the panel determined the school district’s policy survived the three-part test laid out in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), analyzing whether government conduct passes constitutional muster. In particular, the panel concluded there was no religious entanglement problem, as the school district’s released time policy relied exclusively on the provision of off-campus religious instruction by nongovernmental educators and passively accommodated the genuine and independent choices of parents and students to pursue such instruction.
Facts/Issues: In 2006, the South Carolina General Assembly enacted the Release Time Credit Act (RTCA), which codified a common practice of school districts that allowed students to be released for part of the school day in order to receive off-campus religious instruction. However, unlike the previous practice, the RTCA also authorized school districts to award high school students with elective credits for such off-campus religious instruction. The RTCA also required that the released time classes in religious instruction be evaluated on a basis of “purely secular criteria,” which the statute also defined.
Soon after the RTCA was enacted, and based in part on the language in the RTCA, Spartanburg County School District Seven (SCSD7) adopted its own released time policy in March 2007, which stated in part: “The district will accept no more than two elective Carnegie unit credits for religious instruction taken during the school day in accordance with this policy. The district will evaluate the classes on the basis of purely secular criteria prior to accepting credit. The district will accept off campus transfer of credit for release time classes with prior approval.” SCSD7′s policy also provided that the released time courses be taken “away from school property,” without the assistance of public staff or funding, and directed that “district staff and faculty … not promote or discourage participation by district students in a released time program.”
Early in 2007, Spartanburg County Bible Education in School Time (the Bible School), a private, unaccredited religious education organization, approached SCSD7, among other districts, requesting that SCSD7 allow Spartanburg High School (SHS) students to participate for academic credit in a released time religious course focusing on a Christian worldview. In these discussions, SCSD7 stated its preference that grades under the released time program be received as transfer credits from accredited private schools, rather than from unaccredited education providers, like the Bible School. This arrangement would be consistent with SCSD7′s practice of receiving grades awarded by a private school, including grades for religious courses, when a private school student transfers into public school.
As a result, the Bible School entered into an agreement with an accredited private religious school in which the Bible School would submit the grades through the private school to SHS. The private school agreed to review and monitor the Bible School’s curriculum, teacher qualifications, and educational objectives, and to award course credit. This agreement obviated the need for SHS officials to become involved in assessing the “quality” of religious released time courses, consistent with the “purely secular criteria” requirement of the RTCA.
SHS never actively or directly engaged in promoting the Bible School course or any other released time course. The Bible School course was not listed in SHS’ course catalog, and the Bible School could not advertise the course in SHS’ classrooms. The Bible School did provide SHS’ school counselors with flyers, but the counselors were authorized to discuss the Bible School or the flyers with parents and students only after they expressed an interest. SHS permitted the Bible School to staff an information table at SHS’ annual registration open house, just as SHS did for other outside organizations, such as military and college recruiters.
Robert Moss and his daughter Melissa (an SHS graduate), Ellen Tillett, for herself and her minor child (an SHS student), and the Freedom from Religion Foundation (of which Tillett is a member) filed suit in June 2009 against SCSD7 under 42 U.S.C. § 1983, alleging that SCSD7′s released time policy violates the Establishment Clause of the U.S. Constitution.
SCSD7 filed a motion for summary judgment contending that the plaintiffs lacked standing because they were not injured by the policy, and that the policy, in any event, was constitutional in that it was neutrally stated and administered and that it had the secular purpose of accommodating students’ desire to receive religious instruction. In their cross-motion for summary judgment, the plaintiffs argued that the policy’s purpose and primary effect was to promote Christianity.
The record showed that neither student participated in the Bible School course, nor did they claim to have been harassed in any way for not so participating. They were not adversely affected by released time grades, as they both had higher GPAs than any of their classmates who participated in the Bible School course. They did not claim to have seen Bible School personnel on SHS grounds or to have encountered any efforts of SHS to advertise or promote the Bible School. The Mosses did, however, receive a promotional letter in the mail from the Bible School about the released time religious course. SCSD7 did provide the Bible School with student addresses so that it could send the promotional letter, but SCSD7 and SHS officials did not review or approve the letter before it was sent. Ultimately, the district court rejected SCSD7′s standing argument, but agreed with SCSD7 on the merits, and granted summary judgment to SCSD7.
On the plaintiffs’ cross-motions for summary judgment, the district court also ruled in favor of SCSD7, concluding that SCSD7′s released time policy did not violate the three-part Lemon test adopted for enforcing the Establishment Clause. The district court found that (1) SCSD7′s “stated purpose for its release time program, the accommodation of religion, [was] plausible and therefore [had to] be accepted,” that the purpose was secular, and that the plaintiffs failed to show that SCSD7 had an impermissible religious motive; (2) the plaintiffs failed to establish that “the adoption and implementation of [SCSD7's] policy ha[d] the principal effect of advancing religion” and “[did] no more than merely accommodate students’ desire to partake in religious instruction;” and (3) the plaintiffs “failed to show how [SCSD7's] passive acceptance of academic credit for religious instruction constitute[d] excessive entanglement with religion.” The plaintiffs appealed the district court’s April 2011 judgment in favor of SCSD7.
Ruling Rationale: The Fourth Circuit panel affirmed the district court’s decision. Before addressing the merits of the plaintiffs’ Establishment Clause claim however, the appellate panel first analyzed SCSD7′s contention that the plaintiffs did not have standing to challenge the constitutionality of the released time policy because they were not injured by the policy.
In its analysis of the claim of lack of standing, the panel reviewed whether the suit sought to “prevent or redress an ‘actual or imminently threatened injury’ to the plaintiffs.” The panel found the facts to support standing for Tillett and her student (both Christians) to be “notably thin,” and that Tillett’s allegations “amount to little more than simple disagreement with the wisdom” of SCSD7′s policy. The panel also found that the Freedom from Religion Foundation also lacked standing, because it relied exclusively on Tillett’s alleged injury to support its own standing.
The panel noted that Melissa Moss shared similarities with Tillett’s child, i.e., never took the course, never harassed, higher GPA. However, Robert Moss did receive the promotional letter about the course’s Christian content, and the Mosses (both Jewish) “came to the view that it was part of a broader pattern of Christian favoritism” and felt like “outsiders” in their own community. The panel noted that “[f]eelings of marginalization and exclusion are cognizable forms of injury, particularly in the Establishment Clause context,” and concluded that the Mosses have standing.
With respect to the Mosses’ Establishment Clause claim, the Mosses conceded that the off-campus released time initiatives are generally constitutional, but that the award of academic credit for released time coursework is the centerpiece of the case, because it “advances religion more than does traditional release time” and “rewards a student for religious participation.” SCSD7 contended that its policy is constitutional, as it is “no different than the widely accepted practice of giving course credit to students who transfer from private religious schools to public schools,” and it “simply makes it possible to accommodate parents’ and students’ wish[es] for released time education.”
In applying the Lemon test, the panel stated that the U.S. Supreme Court has implemented the test “not through ‘a regime of total separation” between church and State, … , but through a policy of ‘benevolent neutrality ‘that recognizes a wide range of ‘permissible state accommodation’ for religion.” The panel noted that “[i]n the context of these principles, the Supreme Court has made clear that public schools have broad, but not unlimited, discretion to release students from their secular lessons so as to accommodate their desires to engage in religious instruction.” In fact, the panel noted that the U.S. Supreme Court “suggested that if public schools were not permitted to accommodate the religious desires of students and parents in this fashion, the result would be an unconstitutionally hostile environment toward religion.”
In its analysis of the facts, the panel found that SCSD7′s released time policy takes place off campus and expressly prohibits any use of public staff or funds for its execution. The panel also found the manner adopted by SCSD7 for accepting those academic credits was “neutral[ly] administrative,” in that SHS “accepts the grades without individually assessing the quality or subject matter of the [religious] course, trusting the private school accreditation process to ensure adequate academic standards,” and “leaves the monitoring function to private schools.”
The appellate panel also rejected the plaintiffs’ “excessive entanglement” claim as “unpersuasive” in light of the record. Instead, the panel found that SCSD7 officials had maintained a neutral relationship with the Bible School that neither discouraged nor encouraged student participation in the course. It concluded that SCSD7′s released time policy “relies exclusively on the provision of off-campus religious instruction by nongovernmental educators and passively accommodates the ‘genuine and independent choices’ of parents and students to pursue such instruction.”
Moss v. Spartanburg Cnty. Sch. Dist. Seven, No. 11-1448 (4th Cir. Jun. 28, 2012)
[Editor's Note: In April 2012, Legal Clips summarized the district court's decision in Moss v. SCSD7, which held that SCSD7's award of academic credit for off-campus religious instruction does not violate the First Amendment’s Establishment Clause, and concluded that SCSD7's released time policy was a passive measure aimed at satisfying the constitutionally permissible purpose of accommodating students’ religious beliefs.]