Moss v. Spartanburg Cnty. Sch. Dist. Seven

• Decision Date: 28 June 2012
• Docket Number: No. 11–1448.,11–1448.
• Citation: 281 Ed. Law Rep. 791,683 F.3d 599
• Parties: Robert MOSS, individually and as general guardian of his minor child; Ellen Tillett, individually and as general guardian of her minor child; Freedom from Religion Foundation, Incorporated; Melissa Moss, Plaintiffs–Appellants, v. SPARTANBURG COUNTY SCHOOL DISTRICT SEVEN, a South Carolina body politic and corporate, Defendant–Appellee. American Humanist Association; Secular Student Alliance, Amici Supporting Appellants, The National Legal Foundation; State of South Carolina ex rel. Alan Wilson, Attorney General; The Christian Legal Society; National Committee for Furtherance of Jewish Education; National Association of Evangelicals; Advocates for Faith and Freedom; Commonwealth of Virginia; State of Alabama; State of Colorado; State of Florida; State of Louisiana; State of Michigan; State of Nebraska; State of Oklahoma, Amici Supporting Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

683 F.3d 599

281 Ed. Law Rep. 791

Robert MOSS, individually and as general guardian of his minor child; Ellen Tillett, individually and as general guardian of her minor child; Freedom from Religion Foundation, Incorporated; Melissa Moss, Plaintiffs–Appellants,

v. SPARTANBURG COUNTY SCHOOL DISTRICT SEVEN, a South Carolina body politic and corporate, Defendant–Appellee.American Humanist Association; Secular Student Alliance, Amici Supporting Appellants,The National Legal Foundation; State of South Carolina ex rel. Alan Wilson, Attorney General; The Christian Legal Society; National Committee for Furtherance of Jewish Education; National Association of Evangelicals; Advocates for Faith and Freedom; Commonwealth of Virginia; State of Alabama; State of Colorado; State of Florida; State of Louisiana; State of Michigan; State of Nebraska; State of Oklahoma, Amici Supporting Appellee.

No. 11–1448.

United States Court of Appeals, Fourth Circuit.

Argued: March 20, 2012.

Decided: June 28, 2012.

ARGUED:George Daly, Charlotte, North Carolina, for Appellants. Lori Halstead Windham, Becket Fund for Religious Liberty, Washington, D.C., for Appellee. ON BRIEF:Eric C. Rassbach, Luke W. Goodrich, Eric N. Kniffin, Becket Fund for Religious Liberty, Washington, D.C., for Appellee. William J. Burgess, Appignani Humanist Legal Center, American Humanist Association, Washington, D.C., for American Humanist Association and Secular Student Alliance, Amici Supporting Appellants. Steven W. Fitschen, Douglas E. Myers, Virginia Beach, Virginia, for The National Legal Foundation, Amicus Supporting Appellee. Alan Wilson, Attorney General, James Emory Smith, Jr., Assistant Deputy Attorney General, Columbia, South Carolina, for the State of South Carolina ex rel. Alan Wilson, Attorney General, Amicus Supporting Appellee. James K. Lehman, Jay T. Thompson, James B. Glenn, Nelson Mullins Riley & Scarborough, LLP, Columbia, South Carolina, for the Christian Legal Society, National Committee for Furtherance of Jewish Education, National Association of Evangelicals, and Advocates for Faith and Freedom, Amici Supporting Appellee. Kenneth T. Cuccinelli, II, Attorney General of Virginia, E. Duncan Getchell, Jr., Solicitor General of Virginia, Charles E. James, Jr., Chief Deputy Attorney General, Wesley G. Russell, Jr., Deputy Attorney General, Office of the Attorney General, Richmond, Virginia, for Commonwealth of Virginia, State of Alabama, State of Colorado, State of Florida, State of Louisiana, State of Michigan, State of Nebraska, and State of Oklahoma, Amici Supporting Appellee.

Before NIEMEYER, GREGORY, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge GREGORY and Judge WYNN joined.

OPINION

NIEMEYER, Circuit Judge:

In 2007, South Carolina's Spartanburg County School District Seven adopted a policy allowing public school students to receive two academic credits for off-campus religious instruction offered by private educators. The parents of two students at Spartanburg High School commenced this action against the School District, alleging that the policy impermissibly endorses religion and entangles church and State, in violation of the Establishment Clause of the First Amendment.

The School District filed a motion for summary judgment, contending (1) that the plaintiffs lacked standing because they were not injured by the policy, and (2) 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 receivereligious instruction. The plaintiffs filed a cross-motion for summary judgment, arguing that that the purpose and primary effect of the School District's policy was to promote Christianity. The district court rejected the school district's standing argument but agreed with it on the merits and, accordingly, granted summary judgment to the School District.

For the reasons that follow, we affirm.

I

Since at least 1992, a number of school districts in South Carolina have allowed students to be released for part of the school day in order to receive off-campus religious instruction. Initially, the students who availed themselves of this opportunity did not receive grades or academic credit, which made enrollment difficult for some students. In 2006, the South Carolina General Assembly found that “the absence of an ability to award [academic credit] ha[d] essentially eliminated the school districts' ability to accommodate parents' and students' desires to participate in released time programs,” 2006 S.C. Acts 322, and it responded by enacting the Released Time Credit Act. The Released Time Credit Act provides in part:

A school district board of trustees may award high school students no more than two elective Carnegie units for the completion of released time classes in religious instruction ... if:

(1) ... the released time classes in religious instruction are evaluated on the basis of purely secular criteria that are substantially the same criteria used to evaluate similar classes at established private high schools for the purpose of determining whether a student transferring to a public high school from a private high school will be awarded elective Carnegie units for such classes ... and

(2) The decision to award elective Carnegie units is neutral as to, and does not involve any test for, religious content or denominational affiliation.

S.C.Code Ann. § 59–39–112(A). The Act specifies that the “secular criteria” for evaluation include but are not limited to:

(1) number of hours of classroom instruction time;

(2) review of the course syllabus which reflects the course requirements and materials used;

(3) methods of assessment used in the course; and

(4) whether the course was taught by a certified teacher.

Id. § 59–39–112(B).

Soon after the General Assembly enacted the Released Time Credit Act, Spartanburg County School District Seven adopted a released time policy, dated March 6, 2007. The policy states 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 classes with prior approval.

The policy requires that released time courses be taken “away from school property,” without the assistance of public staff or funding. The policy also directs that “district staff and faculty ... not promote or discourage participation by district students in a released time program.”

Early in 2007, a private, unaccredited religious education organization, Spartanburg County Bible Education in School Time (“Spartanburg Bible School”), approached a number of South Carolina school districts, including Spartanburg County School District Seven, requesting that they allow students to participate in a released time religious course—a two-semester Christian worldview class—for academic credit. In discussions with School District Seven, the school officials conveyed their preference that administrators receive grades under the released time program as transfer credits from accredited private schools, rather than from unaccredited education providers, such as Spartanburg Bible School. This arrangement would be consistent with the School District's practice of receiving grades awarded by a private school, including grades for religious courses, when a private school student transfers into public school. The officials explained that by receiving released time grades through a private school “transfer transcript,” the School District could obviate the need for school officials to become involved in assessing the “quality” of religious released-time courses.

Following the School District's preference, Spartanburg Bible School entered into an arrangement with Oakbrook Preparatory School, an accredited private Christian school, by which Spartanburg Bible School could submit its grades through Oakbrook to Spartanburg High School. Under the arrangement, Oakbrook agreed to review and monitor Spartanburg 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. In carrying out the arrangement, Oakbrook reviewed syllabi, spoke with instructors, suggested minor curricular adjustments, and satisfied itself that the Spartanburg Bible School course was academically rigorous.

After Spartanburg Bible School began its instruction under the arrangement with Oakbrook and Spartanburg High School, Spartanburg High School never actively or directly 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.

Over a period of three years, 20 Spartanburg High School students, out of the roughly 1,500 students in the school each year, elected to participate in the released time course at Spartanburg Bible School.

The plaintiffs—Robert Moss, the parent of Melissa Moss, who attended Spartanburg High School and has now graduated; Melissa Moss, in her own right; Ellen...