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Court Upholds Public School’s Policy of Granting Credit for Off-Campus Religious Education During School Hours

Robert Moss v. Spartanburg County School District Seven
No. 11-1448 (4th Cir. June 28, 2012)

by Natalie Scurto, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Moss v. Spartanburg County School District Seven, the Fourth Circuit Court of Appeals affirmed the District Court’s grant of summary judgment in favor of the Spartanburg County School District Seven. The Court found that the policy of granting credit for religious instruction received during school hours, but not on school grounds, properly accommodated religion without establishing it.

In 2006, South Carolina passed the Released Time Credit Act. The Released Time Credit Act provides that school boards may award high school students two (2) credits toward graduation for the completion of released time classes in religious education, so long as the classes are evaluated solely on the basis of secular criteria that are generally the same criteria used to evaluate religious classes at accredited private schools. S.C. CODE § 59-39-112(A). Additionally, the decision to award credits must not involve any test for religious content or denominational affiliation. Id. In 2007, the Spartanburg County School District Seven (“School District”) adopted a released time policy in accordance with the Released Time Credit Act that permitted public school students to receive two (2) academic credits for off-campus religious education. The policy specified that the religious instruction must be taken away from school property and must be taught by private educators. Direct staff and faculty of the School District were prohibited from promoting or discouraging participation in the program.

Shortly after the School District adopted the aforementioned policy, Spartanburg County Bible Education in School Time (“Spartanburg Bible School”) approached Spartanburg High School requesting permission to enroll students under the released time policy. The School District acquiesced. Spartanburg Bible School was an unaccredited education provider, but it worked in conjunction with an accredited private school. The accredited school would review and monitor Spartanburg Bible School’s curriculum, teacher qualifications, and educational objectives. Spartanburg Bible School would then submit its grades to the accredited private school, which would then award its own credit to the students of Spartanburg Bible School based on those grades.

In 2009, Robert Moss, Melissa Moss, Ellen Tillet and the Freedom From Religion Foundation, Inc. (“Plaintiffs”) brought suit against the School District under 42 U.S.C. § 1983, alleging that the School District’s released time policy violated the Establishment Clause of the U.S. Constitution. The U.S. District Court sitting in South Carolina granted summary judgment in favor of the School District, holding that Plaintiffs lacked standing to bring the suit, and that the policy was constitutional because it was neutrally stated and administered and had a secular purpose.

Plaintiffs appealed. They suggested that the Court adopt a per se rule that students and parents always have standing to bring suit against policies at their school when they allege a violation of the Establishment Clause, regardless of whether they allege personal injury. In regard to the policy itself, Plaintiffs argued that the policy of awarding academic credit in a public school for religious education rewards students for religious participation and promotes religious life. The School District argued that the policy was no different than the widely accepted practice of giving school credits to students who transfer from a religious private school to a public school.

The First Amendment states that “Congress shall make no law respecting an establishment of religion.” U.S. CONST. AMEND I. If government conduct is to survive the Establishment Clause, the conduct (1) must be driven in part by a secular purpose; (2) must have a primary effect that neither advances nor inhibits religion; and (3) must no excessively entangle church and State. The Supreme Court recognizes a wide range of “permissible state accommodation” for religion, as opposed to total separation between church and State. Under these principles, public schools have broad discretion to release students from their secular lessons to pursue religious instruction.

Concerning the Plaintiffs’ standing to bring suit, the Fourth Circuit agreed with the district court in part and reversed in part. Each Plaintiff’s standing was addressed individually.

The Court found that Plaintiffs, Ellen Tillett and the Freedom from Religious Foundation, did not have standing. Ellen Tillett did not allege sufficient facts to suggest that she or her child were injured in any way by the policy. Tillett’s child, a student at the high school, had never participated in the course or been pressured to participate. Tillett had not received any information directly from Spartanburg High School. Furthermore, Tillett did not allege that she or her child were victims of religious intolerance. The Court found that Tillett was seeking to vindicate the rights of others, but not her own. Therefore, Tillett did not have standing.

The Court also denied the Freedom from Religious Foundation standing because for an organization to have standing, at least one of its members must establish the he or she suffered harm from the Defendant’s conduct. Freedom from Religious Foundation relied on Tillett’s membership in the organization for standing in this case. The Court found that since Tillett did not have standing, neither did the organization.

Disagreeing with the district court, the Fourth Circuit found that Robert Moss and Elizabeth Moss did have standing in this case. Robert Moss is Elizabeth Moss’ father. Elizabeth Moss, a former student at Spartanburg High School, was never pressured to participate in the program or harassed for not taking the class. The family did, however, receive a promotional letter from Spartanburg Bible School. The Mosses further alleged that the School District favored Christianity, and that since the Mosses were of the Jewish faith, they were made to feel like “outsiders” in their own community. They claimed that due to the relevant policy Robert Moss volunteered less at the school and Melissa Moss opted to attend an out-of-state college after graduation. The Court acknowledged that since one of the main objectives of the Establishment Clause is to prevent the State from making its citizens feel as though they are not full members of the community if they do not adhere to a particular religion, the Mosses had standing to bring suit.

The Court agreed with the District Court on the merits of the case in upholding the School District’s policy under the facts alleged. The Court found that the School District was merely accommodating schedules to allow students to partake in outside religious instruction, not establishing a state religion. The Justices expressed concern that prohibiting such accommodations would create an unconstitutionally hostile environment toward religion. The Court analogized the School District’s policy to permitting students to transfer from an accredited private school to a public school, noting that States are obligated to allow children and parents to fulfill their compulsory education obligations by attending a secular public school or a religious private school.

Plaintiffs’ arguments that the School District, through its released time policy, was excessively entangled with Spartanburg Bible School were also rejected. The School District required that the religious instruction occur outside of the school’s premises by nongovernmental educators. The Court found the relationship between Spartanburg Bible School and the School District to be a neutral one. Spartanburg’s presence in the School District was very minimal. While the School District did house Spartanburg Bible School informational flyers, the flyers were not distributed unless a student and his or her parents expressed interest first. Spartanburg Bible School was not allowed to visit classrooms or take any other actions on school premises to recruit students. The only time Spartanburg Bible School was permitted to actively recruit on school grounds was during an annual student registration fair, and other nonreligious organizations, including military and college recruiters, were afforded the same privileges.

For the reasons above, the Fourth Circuit affirmed the District Court’s grant of summary judgment in favor of the School District. The Court upheld the School District’s policy of granting credit for outside religious education—Spartan Bible School included—finding no evidence to suggest that the program had the effect of establishing a religion or that it entangled the School District in religion.


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