Off-Campus Religious Instruction and the Separation Clause

No. 11-1448, 2012 U.S. App. LEXIS 12248 (4th Cir. June 28, 2012).

"Fourth Circuit Upholds Public School District’s Off-Campus Religious-Instruction Released-Time Policy"

By Richard Fossey, J.D., Ed.D.

In Moss v. Spartanburg County School District Seven, No. 11-1448, 2012 U.S. App. LEXIS 12248 (4th Cir. June 28, 2012), a decision released in late June, the Fourth Circuit Court of Appeals upheld a South Carolina school district’s policy allowing students released time during the school day for off-campus religious instruction. Two parents challenged the policy as a violation of the Establishment Clause, arguing the policy went beyond the released-time policy approved by the Supreme Court in Zorach v. Clauson, 343 U.S. 306 (1952), because the district granted academic credit for the off-campus religious instruction.

The Fourth Circuit rejected this argument, finding that the policy neither endorsed religion nor violated the three-part Lemon test. Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971).

Spartanburg’s Off-Campus Religious-Instruction Policy

Soon after the South Carolina General Assembly enacted the Released Time Credit Act (S.C. CODE ANN. § 59-39-112 (2006), the Spartanburg School District adopted a released-time policy that 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 released time with prior approval. Id. at *5. The district policy required all released-time courses to be taught “away from school property” without the assistance of school staff or funding. In addition, although the school district’s official policy did not require off-campus religious courses to be taught in accredited private high schools, district administrators stated their preference for having the classes taught in accredited private schools. Id. at 6. Having religious courses taught in accredited high schools would eliminate the need for Spartanburg School District officials to independently evaluate whether the courses were eligible for transfer credit by the Spartanburg public school system.

Spartanburg County Bible Education in School Time (Spartanburg Bible School) asked the Spartanburg public school district to allow its “students to participate in [the Bible School’s] religious course—a two-semester Christian Worldview class—for academic credit.” Id. at *6. Spartanburg Bible School was not accredited, so it arranged to have the accredited Oakbrook Preparatory School review and monitor the Bible School’s “curriculum, its teacher qualifications, and educational objectives, and to award course credit and grades given by the Bible School before transferring them to Spartanburg High School.” Id. at *7.

According to the Fourth Circuit’s opinion: Spartanburg High School never actively engaged in promoting the Spartanburg Bible School course or any other released time course. The Spartanburg Bible School course was not listed in the Spartanburg High School course catalog, and the Bible School was not permitted to advertise itself in Spartanburg High School classrooms. While the Bible School did provide Spartanburg High School guidance counselors with flyers, the counselors were authorized to discuss Spartanburg Bible School or the flyers with parents and students only after they expressed an interest in learning about the program.

Spartanburg High School did, however, allow Spartanburg Bible School to staff an informational table at its annual registration open house for parents and students, as it did for other outside organizations, such as military and college recruiters. Id. at *7-8. Few Spartanburg High School students participated in the school’s released-time program. “Over a period of three years, 20 Spartanburg High School students, out of the roughly 1500 students in the school each year, elected to participate in the released-time course at Spartanburg Bible School.” Id. at *8.

Plaintiffs’ Standing to Bring Suit

Robert Moss brought suit on behalf of his daughter, and Ellen Tillett brought suit on behalf of her child, both parents alleging that the released-time policy violated the Establishment Clause of the First Amendment. The Fourth Circuit concluded that Tillett lacked standing to bring suit since she and her child “had no personal exposure to the Spartanburg Bible School apart from their abstract knowledge of the School District’s released time policy.” Id. at *15. In the Fourth Circuit’s view, “Tillett’s allegations amount to little more than simple disagreement with the wisdom of the School District’s policy.” Id. at *16.

On the other hand, the court ruled that Robert Moss and his daughter did have standing to bring suit. The Mosses, who were not Christians, received a solicitation letter from Spartanburg Bible School that suggested the School District endorsed Evangelical Christianity and disfavored other religious traditions, including the Jewish tradition to which the Mosses belong. “Feelings of marginalization and exclusion are cognizable forms of injury, particularly in the Establishment Clause context,” the Fourth Circuit opined, “because one of the core objectives of modern Establishment Clause jurisprudence has been to prevent the State from sending a message to non-adherents of a particular religion ‘that they are outsiders, not full members of the political community.’” Id. at *19 (internal citation omitted).In addition, Mr. Moss and his daughter “testified that they changed their conduct in adverse ways as a result of their perceived outsider status.” Id.

Fourth Circuit: School’s Released-Time Policy Does Not Violate Establishment Clause

The Mosses conceded that off-campus released-time policies are generally constitutional under the Zorach decision, but they argued that the Spartanburg policy went beyond the limits of Zorach because it granted academic credit for courses taught by the Bible School. The Fourth Circuit disagreed with the Mosses. Zorach remains good law, the court noted, and “[t[he fact that a public school accepts credits for its released-time courses does not alter the analysis under any one of Lemon’s three prongs in view of the neutral administrative manner adopted by the School District for accepting those credits.” Id. at *26. The court pointed out that the school system was evaluating religious course credit in the same way it would evaluate the grades of any student who transferred from an accredited private high school into the public school system.

Interestingly, the Fourth Circuit buttressed its reasoning by relying on that old chestnut case, Pierce v. Society of Sisters, 268 U.S. 510 (1925): Also important to our conclusion [the Fourth Circuit stated] is the governing principle that private religious education is an integral part of the American school system. Indeed, States are constitutionally obligated to allow children and parents to choose whether to fulfill their compulsory education obligations by attending a secular public school or a religious private school. Pierce v. Soc’y of Sisters . . . . It would be strange and unfair to penalize such students when they attempt to transfer into the public school system by refusing to honor the grades they earned in their religious courses, potentially preventing them from graduating on schedule with their public school peers. Far from establishing a state religion, the acceptance of transfer credits (including religious credits) by public schools sensibly accommodates the “genuine choice among options public and private, secular and religious.” Zelman v. Simmons-Harris, 536 U.S. 639, 662, 122 S. Ct. 2460, 153 L. Ed. 2d 604 (2002) (upholding an Ohio voucher initiative for this reason). Id. At *28-29.

The Fourth Circuit culminated its opinion by expressly finding no excessive entanglement between the Spartanburg public schools and the Spartanburg Bible School. “At bottom,” the court concluded, “because the School District’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, Zelman, 536 U.S. at 649, we affirm the district court’s decision.” Id. at 30.

Significance of the Fourth Circuit’s Decision

Moss v. Spartanburg County School System Seven is the second recent Fourth Circuit decision to uphold a controversial school district policy. In Kowalski v. Berkeley County School District, 652 F.3d 565 (4th Cir. 2011), the court upheld a school’s decision to discipline a high school student for demeaning a classmate in an internet-delivered communication, even though the student’s expression took place off campus and outside school hours. Both decisions are equally well reasoned and strike the right balance between the constitutional rights of public school students and the legitimate interests of public school systems. Moss goes beyond the factual context of the Supreme Court’s Zorach decision concerning the constitutionality of public school policies allowing released time for off-campus religious instruction. In Moss, the Fourth Circuit not only upheld the constitutionality of the school district’s released-time policy (in harmony with Zorach), it also endorsed the school district’s procedures for granting academic credit for religious instruction. Finally, the Fourth Circuit, in a tightly reasoned and thoroughly credible way, anchored its decision in harmony with Pierce v. Society of Sisters. If a parent and child have a constitutional right to attend a private religious school, the court reasoned, it would be strange for a school district to be constitutionally required to reject course credits for a religion course that a private school student wishes to transfer from an accredited private school.