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No. 11-1448
United States Court of Appeals
for the Fourth Circuit_______________________________________________
ROBERT MOSS, et al., Appellant,
v.
SPARTANBURG COUNTY SCHOOL DISTRICT NO. 7,Appellee
_____________________
Appeal from the
United States District Courtfor the District of South Carolina
Spartanburg Division
BRIEFAMICICURIAE OF THE
AMERICAN HUMANIST ASSOCIATIONAND THE SECULAR STUDENT ALLIANCE
IN SUPPORT OF APPELLANT
SEEKING REVERSAL
WILLIAM J. BURGESS
Counsel of Record
Appignani Humanist Legal Center
American Humanist Association
1777 T Street, N.W.Washington, D.C. 20009
(202) 238-9088
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RULE 26.1 CERTIFICATION
Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae theAmerican Humanist Association and the Secular Student Alliance make the
following disclosure statements:
The American Humanist Association is a nonprofit corporation.
The Secular Student Alliance is a nonprofit corporation.
1. Are the amici publicly held corporations or other publicly held
entities? No.
2. Do the amici have any parent corporations? No.
3. Is 10% or more of the stock of the amici owned by a publicly held
corporation or other publicly held entity? No.
4. Is there any other publicly held corporation or other publicly held
entity that has a direct financial interest in the outcome of the litigation by reason
of a franchise, lease, other profit sharing agreement, insurance, or indemnity
agreement (Local Rule 26.1(b))? No publicly held corporation or other publiclyheld entity has a direct financial interest in the outcome of this litigation by reason
of a franchise, lease, other profit sharing agreement, insurance, or indemnity
agreement due to the participation of the amici.
/s/ William Burgess
William Burgess
American Humanist Association
/s/ August E. Brunsman IV
August E. Brunsman IV
Secular Student Alliance
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TABLE OF CONTENTS
RULE 26.1 CERTIFICATION .................................................................................. i
STATEMENT OF IDENTITY AND INTERESTS OFAMICI CURIAEAND
SOURCE OF AUTHORITY TO FILE BRIEF ......................................................... v
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 2
I. The School District did not have a genuine and primary secular purpose for
its decision to generate student interest in the Program by adopting the Credit
Policy offering credit for religious Program classes in response to dwindling
student interest. ....................................................................................................... 2
II. The primary effect of the adoption of the Credit Policy is to advancereligion by encouraging students to enroll in the Programs religious classes. ..... 8
III. The Program violates the Equal Protection Clause because it divides
students along the lines of a suspect classification, religion, and segregates
students on the basis of their religious views. ......................................................13
CONCLUSION ........................................................................................................22
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................23
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Cases
Allen v. Wright, 468 U.S. 737, 755, 756 (1984) ......................................................19
Ball v. Massanari, 254 F. 3d 817 (9th
Cir. 2001) .....................................................14
Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 728(1994) ....................................................................................................................17
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ................................................13
Brown v. Board of Education, 347 U.S. 483, 494 (1954)........................................19
City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) .......................................13
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94 (1989) .......................19
Com. v. Kneeland, 37 Mass. 206, 1838 WL 2655(Mass. 1838). ............................20
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos,
483 U.S. 327, 335 and 334 (1987).......................................................................... 4
County of Allegheny v. ACLU, 492 U.S. 573, 590 (1989) .............................. 2, 9, 11
Cutter v. Wilkinson, 544 U.S. 709, 720 (2005). ......................................................... 4
Epperson v. Arkansas, 393 U.S. 97, 104 .................................................................11
Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 711 (1985) ............................5, 12
Evans v. Newton, 382 U.S. 296, 300 (1966) ............................................................16
Faulkner v. Jones, 51 F. 3d 440, 444 (4th
Cir. 1995) ...............................................18
Grutter v. Bollinger, 509 U.S. 306, 326 (2003). ......................................................15
Hecklerv. Mathews, 465 U.S. 728, 739-40 (1984) .......................................... 19, 22
Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign
County, 333 U.S. 203, 209210 (1948) ................................................................19
Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 247 (1931). ................22Lee v. Weisman, 505 U.S. 577, 587 (1992). .............................................................. 4
Lemon v. Kurtzman, 403 U.S. 602 (1971) ................................................................. 2
McCreary County v. ACLU of Ky., 545 U.S. 844, 864 (2005). ...................... 3, 8, 11
Meek v. Pittenger, 421 U.S. 349, 359 (1975), ........................................................... 4
Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S.
701, 743 (2007) .....................................................................................................15
People ex rel. McCollum v. Board of Ed. of School Dist. No. 71, 396 Ill. 14, 71
N.E.2d 161, 162 (Ill. 1947). ..................................................................................19
Pierce v. Society of Sisters, 268 U.S. 510 (1925). ...................................................16
Plyler v. Doe, 457 U.S. 202, 216-17 (1982). ...........................................................13
Regents of University of California v. Bakke, 438 U.S. 265, 289 (1978). ...............17
Sandlin v. Johnson, 643 F. 2d 1027 (4th
Cir. 1981) .................................................14
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 308 (2000). .................... 9
School Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 275-276 (1963) .....5, 6
Shaw v. Reno, 509 U.S. 630, 648-649 (1993). .........................................................17
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Smith v. Smith, 523 F. 2d 121, 125 (4th
Cir. 1975) .................................................... 3
State Ex Rel. Dearle v. Frazier, 102 Wash. 369, 173 P. 35 (1918) ........................... 6
Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989). .............................................7, 12
Wallace v. Jaffree, 472 U.S. 38 (1985) ...................................................................... 8
Zorach v. Clauson, 343 U.S. 306 (1952) ........................................................ 4, 5, 12
StatutesS.C. Code Ann. 591460(A). ................................................................................. 6S.C. Code Ann. 59-39-112(A)(2006). ..................................................................... 1
S.C. Code. Ann. 5939112(A). .............................................................................. 7SC LEGIS 241 (2002). ............................................................................................... 7
Other AuthoritiesFrank Newport, State of States: Importance of Religion (January 28, 2009)
available at http://www.gallup.com/poll/114022/state-states-importance-
religion.aspx#1, retrieved May 17, 2011 ..............................................................21Kosmin, B. & S. Lachman. One Nation Under God: Religion in Contemporary
American Society; Harmony Books: New York (1993), pg. 88-93. ...................21
Memorial Addresses Delivered in Congress,Louis C. Rabaut, 87th
Cong. 2nd
Sess.,
United States Government Printing Office Washington, 1, 45 (1962). ...............20
Penny Edgell, Joseph Gerteis, Douglas Hartmann,Atheists as Other: Moral
Boundaries and Cultural Membership in American Society, Am. Soc. Rev. Vol.
71, 211 (2006). ......................................................................................................21
The Pew Forum on Religion & Public Life,News Release, July 24, 2003: Many
Wary of Voting For an Atheist or a Muslim, 1, 10-14 (2003). .............................20
The Pew Forum on Religion in Public Life, U.S. Religious Landscape Survey, 5(2008) http://religions.pewforum.org/pdf/report-religious-landscape-study-
full.pdf. .................................................................................................................18
Constitutional ProvisionsU.S. Const. amend. I. ................................................................................................. 3
U.S. Const. Amend. XIV, 1. .................................................................................13
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STATEMENT OF IDENTITY AND INTERESTS OFAMICI CURIAE AND
SOURCE OF AUTHORITY TO FILE BRIEF
This amici curiae brief in support of the Appellant is being filed on behalf of
the American Humanist Association (AHA) and the Secular Student Alliance
(SSA). The AHA and the SSA are independent nonprofit organizations and are
not affiliated with each other.
The AHA advocates for the rights and viewpoints of humanists. Founded in
1941 and headquartered in Washington, D.C., its work is extended through more
than 100 local chapters and affiliates across America. Humanism is a progressive
philosophy of life that, without theism and other supernatural beliefs, affirms our
ability and responsibility to lead ethical lives of personal fulfillment that aspire to
the greater good of humanity. The mission of the AHA is to promote the spread of
humanism, raise public awareness and acceptance of humanism and encourage the
continued refinement of the humanist philosophy.
The SSA is a network of over 250 atheist, agnostic, humanist and skeptic
groups on high school and college campuses. Although it has a handful of
international affiliates, the organization is based in the United States with the vast
majority of its affiliates at U.S. high schools and colleges. The mission of the SSA
is to organize, unite, educate and serve students and student communities that
promote the ideals of scientific and critical inquiry, democracy, secularism and
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human-based ethics.
Amici assert that this case addresses core humanist and atheist concerns
about the states responsibility to provide a secular education for our children and
to avoid the promotion of religion by our public schools.
Amici wish to bolster the principle of religious neutralitythat government
may not prefer religion over nonreligionby informing the Court that amici
support a reversal of the District Courts decision and that a affirmance of the
decision would have the constitutionally impermissible effect of advancing
religion.
The parties to this case have consented to the filing of this brief.
This brief was authored by counsel for the AHA. It was not authored by
counsel for any party to the case in whole or in part. No such party or its counsel
contributed money that was intended to fund preparing or submitting this brief. No
person, other than amici curiae, their members or their counsel, contributed money
that was intended to fund preparing or submitting this brief.
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INTRODUCTION
In 2006, South Carolina enacted the South Carolina Released Time Credit
Act (the Credit Act), which allows public school districts to award high school
students . . . two elective Carnegie units for . . . religious instruction. S.C. Code
Ann. 59-39-112(A)(2006). Prior to 2006, Spartanburg County School District
No. 7 (the School District) offered a released time program (the Program) of
off-campus religious classes to its students through Spartanburg County Bible
Education in School Time (SCBEST). However, with student interest
dwindling, as the District Court noted, the School District discontinued the
Program. Moss v. Spartanburg County School Dist. No. 7, --- F. Supp. 2d ----,
2011 WL 1296699 (D.S.C. 2011). Soon after the passage of the Credit Act,
however, SCBEST asked the School District to revive the Program, hoping to
generate student interest by offering state academic credit for Program classes. In
2007, the School District approved this attempt revive the Program through the
new enticement of class credit for participating students by adopting a policy (the
Credit Policy) instituting and governing the revised Program. Under the Credit
Policy, students who complete SCBESTs classes receive official state academic
credit, labeled as supposed transfer credit from Oakbrook Preparatory School
(Oakbrook), an accredited private religious school, with the grades for such
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classes entered upon the students official transcript and credited towards
graduation requirements.
ARGUMENT
Any governmental practice which touches upon religion, if it is to be
permissible under the Establishment Clause, must have a secular purpose and not
advance . . . religion in its principal or primary effect. County of Allegheny v.
ACLU, 492 U.S. 573, 590 (1989), citingLemon v. Kurtzman, 403 U.S. 602 (1971).
Specifically, the government may not promote or affiliate itself with any religious
doctrine or organization. Id. Courts pay particularly close attention to whether
the challenged governmental practice either has the purpose or effect of
[unconstitutionally] endorsing religion. Id. at 591. Endorsement includes
conveying or attempting to convey a message that religion . . . is favored or
preferred. Id. at 593. Not only may the government not advance, promote,
affiliate with, endorse, prefer or favor any particular religion, it may not favor
religious belief [in general] over disbelief or adopt a preference for the
dissemination of religious ideas. Id.
I. The School District did not have a genuine and primary secular purposefor its decision to generate student interest in the Program by adoptingthe Credit Policy offering credit for religious Program classes in response
to dwindling student interest.
The secular purpose required of all government action must be genuine, not
a sham, and not merely secondary to a religious objective. McCreary County v.
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ACLU of Ky., 545 U.S. 844, 864 (2005). Courts are to determine this purpose from
the perspective of an objective observer familiar with the history and context of the
issue. Id. at 862. The Supreme Court has made clear that courts should not be a
pushover for any secular [purpose] claim[ed]; the supposed secular purpose
asserted must be both the actual preeminent and primary purpose and not
implausible or inadequate.Id. at 864-5.
The Credit Policy itself states that its purpose is simply to establish the
basic structure for released time for students for religious instruction. The School
District asserted to the District Court1
that its purpose in instituting the Program
was to accommodate its students demand for religious instruction during school
hours. 2011 WL 129 6699 at *12. Although the District Court was correct in
stating that courts have held that accommodation of religion can constitute a
legitimate secular purpose in certain circumstances, it erred in concluding that the
present case is one that presents such an instance of the sort of accommodation
permitted by the Establishment Clause.2
The District Courts reliance on Smith v. Smith, 523 F. 2d 121, 125 (4th
Cir.
1975), for the conclusion that courts have generally accepted accommodation of
1The assertion of accommodation as a purpose appears to be solely a litigation
position, as there is no indication at all in the record that it was the actual
motivation for the School Districts adoption of the Credit Policy.2
U.S. Const. Amend. I.
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religion as a plausible purpose for released time was misplaced in this instance. A
close reading reveals that Smith amounted to nothing more than confirmation that
Zorach v. Clauson, 343 U.S. 306 (1952), survived (and is embodied in) Lemon.
Smith at 124. Credit for released time classes was not an issue in Smith, and so
Smith cannot support the conclusion that the School District had a genuine secular
purpose in enacting the Credit Policy. This new issue must instead by analyzed
under Lemon (and the subsequent Supreme Court cases interpreting and applying
theLemon test).3
As the Supreme Court has made clear, [t]he principle that government may
accommodate the free exercise of religion does not supersede the fundamental
limitations imposed by the Establishment Clause. Lee v. Weisman, 505 U.S. 577,
587 (1992). Accommodation is permitted only when it alleviates exceptional
government-created burdens on private religious exercise. Cutter v. Wilkinson,
544 U.S. 709, 720 (2005) (emphasis added). It must do so, however, without
sponsorship or unlawful fostering of such religious activity. Corp. of
Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S.
327, 335 and 334 (1987). An accommodation which conveys a message of
3The Smith court recognized that Lemon governs, concluding that, given the
Supreme Courts post-Lemon reference to Zorach in Meek v. Pittenger, 421 U.S.
349, 359 (1975), the application of the Lemon test to the facts ofZorach simply
results in the conclusion that the particular released time program described in
Zorach must pass the test.
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endorsement of the religious practice being accommodated advances religion in
violation ofLemon. Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 711 (1985)
(OConnor, J., concurring).
As the Supreme Court noted in Zorach, a released time program is not
unconstitutional to the extent that all it amounts to is public institutions . . .
mak[ing] . . . adjustments of their schedules to accommodate the religious needs of
the people. Zorach at 315 (emphasis added). The Court expressly noted that the
released time program at issue inZorach was nothing more the government simply
clos[ing] its doors or suspend[ing] its operations as to those who want to repair to
their religious sanctuary for worship or instruction. No more than that is
undertaken here. Zorach at 314 (emphasis added). The Court explained that
were school officials to us[e] their office topersuade . . . students to take religious
instruction, a wholly different case would be presented. Id. at 312 (emphasis
added). Such a case is presented here.
The Supreme Court has never upheld a released time program that also
awards official state academic credit and grades for its religious classes. To the
contrary, the Court has hinted that such a program by its very nature exceeds the
bounds ofZorach and violates the Establishment Clause. See School Dist. of
Abington Tp., Pa. v. Schempp, 374 U.S. 203, 275-276 (1963) (Douglas, J.,
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concurring, citing with approval4State Ex Rel. Dearle v. Frazier, 102 Wash. 369,
173 P. 35 (1918) (striking down as unconstitutional a program that permitted
public school students to receive academic credit for religious study outside the
school system)).
The history of the Program makes clear that the School Districts purpose in
adopting the Credit Policy went beyond mere permissible passive accommodation
and into active promotion of the Program (and therefore of the religious content of
its classes). The Program, as it existed prior to the adoption of the Credit Policy,
amounted to the sort of schedule adjustment upheld in Zorach.5
Student interest
4Although Frazierdeclared the program at issue invalid under a state constitution,
the courts objections to the program apply with equal force under the federalconstitution. In Schempp, Justice Douglas observed that [t]he last quarter of thenineteenth century found the courts beginning to question the constitutionality of
public school religious exercises. The legal context was still, of course, that of thestate constitutions, since the First Amendment had not yet been held applicable to
state action. Id. at 275 (Douglas J., concurring). He continued, the stateconstitutional prohibitions against church-state cooperation or governmental aid to
religion were generally less rigorous than the Establishment Clause of the First
Amendment . . . . It is therefore remarkable that the courts of a half dozen States
found religious exercises in the public schools in violation of their respective state
constitutions. Id. Because the states constitutional provisions in Frazierwere
less rigorous than the federal provisions, the Program, which is materially similar
to that in Frazier, must, a fortiori, violate the Establishment Clause.5 Prior to enacting the current Credit Policy, the School District had since 1992accommodated religion by giving students the opportunity to receive religious
instruction by attending released time classes. 2011 WL 1296699 at *1. In 2002,
South Carolina formally codified school districts authority to release students
during the school day to partake in off-campus religious instruction. S.C. Code
Ann. 591460(A). This former policy, which did not offer credit for releasedtime classes, was considered by the legislature a constitutionally acceptable
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was so low, however, that the Program was halted. When, as here, no concrete
need to accommodate religious activity has been shown (in this case by the total
lack of demand), no accommodation can be said to be required. Texas Monthly,
Inc. v. Bullock, 489 U.S. 1, 18 (1989).
Rather than see the lack of student demand for the Program as the lack of the
requisite concrete need to accommodate, however, the School District instead
acted itself to generate interest in the Program by adopting the Credit Policy. This
attempt to promote the Program goes beyond merely permitting the release of
students from their regular school schedule by activelyenticing them to make this
choice. The School Districts purpose in adopting the Credit Policy cannot, then,
be seen by an objective observer as the permissibly secular one of meeting a
demand for a particular accommodation of the religious requirements of students,
but must instead be seen as the impermissibly religious one of advancing it by
seeking to encourage students to take part in the Programs religious classes.
Similar attempts to actively promote religion in the guise of accommodation
by expanding an existing, sufficiently accommodationist policy have been rejected
method. SC LEGIS 241 (2002). In 2006, however, South Carolina enacted theCredit Act, which authorized public school districts to award high school students
credit for released time religious instruction. S.C. Code. Ann. 5939112(A).
Because the state sufficiently accommodated religion in its previous program, the
additional state action taken to increase student participation in religious
instruction through awarding credit surpassed the line of permitted accommodation
into unconstitutional endorsement of religion.
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by the Supreme Court. See McCreary at 864 (stating that the Court declined to
credit [a] stated secular rationale of accommodation for [state action] given the
implausibility of that explanation in light of another [policy] already
accommodating the religious interest at issue, citing Wallace v. Jaffree, 472 U.S.
38 (1985)).
Promoting the Program necessarily means promoting its religious content.
By offering credit to make religious instruction more appealing, the primary
purpose of the adoption of the Credit Policy enacted in direct response to
student interest dwindling was to advance religion by promoting the Program
in violation of the Establishment Clause.
II. The primary effect of the adoption of the Credit Policy is to advancereligion by encouraging students to enroll in the Programs religious
classes.
The adoption of the Credit Policy fundamentally changed the Program in
such a way that it ceased to be a permissibly passive and limited accommodation
of religion and became instead an active promotion and adoption of the religious
instruction offered by SCBEST. The primary effect of this change is that the
School District endorsed the content of SCBESTs classes when it adopted the
Credit Policy incorporating the results of such classes into the academic record of
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School District students. This promotion and endorsement of those classes
advances religion in violation of the Establishment Clause.6
A school sponsored program amounts to an endorsement, rather than an
accommodation, of religion (and so violates the Establishment Clause) if an
objective . . . student will unquestionably perceive [such program] as stamped with
her schools seal of approval and as, in actuality, encouraged by the school.
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 308 (2000).
The Credit Policy amounts to stamping the School Districts seal of
approval on SCBESTs classes. An objective student observer would see that
awarding credit for religious classes makes those classes effectively an official part
of the school curriculum because the results of such classes are added to the
students official academic transcript and counted toward graduation requirements
just as similar elective secular classes are. Incorporating religious classes into the
fabric of the public school system in this way gives the reasonable observer the
impression that the school approves of the content of the classes and treats them as
it does its own, blurring the line separating the School Districts secular instruction
and SCBESTs religious instruction. This effect is one that affiliates the School
6 When considering the effect of state action, endorsement and promotion are
both impermissible as advancement of religion. As the Supreme Court has noted,
[w]hether the key word is endorsement, favoritism, or promotion, theessential principle remains the same. Allegheny at 593-4. These words andconcepts are used interchangeably herein.
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District with religion and amounts to an unconstitutional endorsement of the
religious content of the Programs classes.7
The adoption of the Credit Policy also amounts to encouragement for
students to take part in the Program. As described above, the Credit Policy was
enacted as a way to revive a Program that had become moribund due to a lack of
student demand by making it more attractive. The Supreme Court has found a
released time program to be constitutional to the extent that it is a passive response,
in the form of a schedule adjustment and no more, to a pressing demand by
religious students to meet their free exercise needs. In this case, however, School
District students demonstrably did not demand such an accommodation. The
School District is not constitutionally permitted to decide that this outcome is
unacceptable and to seek to encourage students to take part in the Program by
7This effect is not the same as that of a school policy that accepts the previous
coursework in toto of transfer students from private religious schools to public
schools. Acceptance of genuine transfer credit for pastfull-time study at private
religious schools is significantly different from the phony transfer creditostensibly awarded by Oakbrook under the Program. The former amounts to an
acceptance that a full-time student has completed the requisite number of grade
levels in order that she may join her age-group peers in the public schools. The
purpose and effect of doing so is promote the attendance ofsecularpublic schools
by students who are currently attending private religious schools without having tostart their education over entirely. Under the Credit Policy, however, credit is
awarded on a class-by-class basis for ongoing work in a way intended to integrate
the results of such classes into the students public school record and to count
toward public school graduation. The purpose and effect of awarding credit under
the Policy is to promote religious instruction in connection with and integrated
within a public school education in violation of the Establishment Clause.
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rewarding them with class credit for doing so; such encouragement is a promotion
of the religious classes in violation of the Establishment Clause.
Furthermore, the District Court made several significant errors in reaching
its conclusion that the Program does not violate the Establishment Clause. First, in
considering the effect of the adoption of the Credit Policy, the District Court
clearly erred in describing the Program as facially neutral, favoring no particular
religion or denomination. 2011 WL 1296699, at *14. The Program indeed may
not favor one denomination over others, but it permits released time only for
religious instruction. The Supreme Court has repeatedly made clear that the
Establishment Clause protects not only against state favor for one particular
religion over others, but also for religion in general over non-religion. See e.g.
McCreary at 860.8
The School District does not offer a comparable program
permitting atheist, agnostic, humanist or other secular students to be released from
class for similar outside secular ethical instruction not offered as part of the School
Districts regular course offerings. This sort of preferential treatment of religious
8 Perhaps in the early days of the Republic [the words of the Establishment
Clause] were understood to protect only the diversity within Christianity, but today
they are recognized as guaranteeing religious liberty and equality to the infidel,the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.
Allegheny at 590. See also Epperson v. Arkansas, 393 U.S. 97, 104 (1968)
(holding that the First Amendment requires governmental neutrality between . . .
religion and nonreligion) and McCreary (holding that the Establishment Clause
protect[s] adherents of all religions, as well as those who believe in no religion atall).
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students interests without according similar accommodation to ethical . . . beliefs
. . . of other [students conveys a] message . . . of endorsement of a particular
religious belief to the detriment of those who do not share it . . . [and] therefore has
the effect of advancing religion. Bullockat 16, citing Estate of Thornton at 711
(emphasis added, internal quotation marks omitted).
Second, the District Court overstated the holding ofZorach when it asserted
that Zorach clearly illustrates that the Establishment Clause is not offended when
a public school encourages students to engage in religious instruction by passively
cooperating with religious education providers and accommodating students
desire to receive religious instruction. 2001 WL 1296699 at *16 (citingZorach at
314). The District Courts citation toZorach refers to the page where the Supreme
Court states that [w]hen the state encourages religious instruction or cooperates
with religious authorities by adjusting the schedule of public events to sectarian
needs it does not violate the Establishment Clause. Zorach at 314 (emphasis
added). The Program in effect prior to 2006 was such a passive schedule
adjustment; the Credit Policy changed the nature of the Program, however, by
actively seeking to promote it to a previously disinterested student body through
the offering of credit for religious classes. The School Districts award of credit
for religious instruction amounts to conveying a message of endorsement of these
classes. Such promotion and endorsement advances religion.
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In conclusion, an objective student observer, considering the history and
context of the Program in the School Districts schools, would perceive the
adoption of the Credit Policy as an attempt to promote a religious Program which
the prior lack of student demand had shown was unnecessary and unwanted. Such
observer would see the awarding of credit for religious classes as the School
Districts approval of such classes. State promotion and approval of religious
classes has the primary effect of advancing religion in violation of the
Establishment Clause.
III. The Program violates the Equal Protection Clause because it dividesstudents along the lines of a suspect classification, religion, and segregates
students on the basis of their religious views.
The Fourteenth Amendment provides that [n]o State shall . . . deny to any
person within its jurisdiction the equal protection of the laws. U.S. Const.
Amend. XIV, 1. Under the Equal Protection Clause, state action that treats
persons differently on the basis of suspect classifications is subject to strict
scrutiny. See e.g.Plyler v. Doe, 457 U.S. 202, 216-17 (1982).
The Supreme Court has expressly listed religion as among those inherently
suspect classifications that trigger strict scrutiny. See City of New Orleans v.
Dukes, 427 U.S. 297, 303 (1976) (referring to inherently suspect distinctions such
as race, religion, or alienage) and Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978) (referring to an un-justifiable standard such as race, religion, or other
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arbitrary classification.); see alsoBall v. Massanari, 254 F. 3d 817 (9th
Cir. 2001)
(referring to a suspect class (such as race, religion, or national origin)) and
Sandlin v. Johnson, 643 F. 2d 1027 (4th
Cir. 1981) (referring to classifications on
the basis of race or any other basis calling for heightened scrutiny, i.e., religious
affiliation. . .) (emphases added).
The Program permits students to be released from class onlyfor religious
instruction. S.C. Code Ann. 5939112(A). The School District does not offer
a comparable program permitting atheist, agnostic, humanist or other secular
students to be released from class for outside secular ethical instruction not offered
as part of the School Districts regular course offerings. The Program divides the
School Districts students into two categories, religious and non-religious, and
offers a benefit only to religious students.9
This division of students on the basis of
their religious views is a suspect classification, and therefore subject to strict
scrutiny.
A court employing strict scrutiny to analyze a suspect classification should
find such classification constitutional only if [it is] narrowly tailored to further
9The Program gives credit for instruction provided by private religious
institutions, such as Oakbrook, that are free to discriminate in admissions on the
basis of religion because they do not face the constraints that the Equal Protection
Clause places upon state actors. Thus, even if a nonreligious student wanted for
some inexplicable reason to participate in the Program, the private religious school
is free to discriminate against such a student.
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compelling governmental interests. Grutter v. Bollinger, 509 U.S. 306, 326
(2003).
A compelling interest must be more than just a worthy goal. Parents
Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 743
(2007) (stating that [s]imply because . . . school districts may seek a worthy goal
does not mean they are free to discriminate on the basis of [a suspect classification]
to achieve it, or that their [suspect] classifications should be subject to less
exacting scrutiny ). The School Districts promotion of religion is not only not
worthy, it is unconstitutional.
The only conceivable interest that arguably could be compelling enough to
support the School Districts Program is that of a genuinely necessary
accommodation of student religious needs mandated by the Free Exercise Clause
(and, of course, not prohibited by the Establishment Clause). As amici curiaes
arguments above demonstrate, however, the adoption of the Credit Policy is not the
sort of accommodation permitted under the Establishment Clause. Rather, it is an
attempt to promote a program of religious instruction to a student body that has
shown no desire for it, let alone a pressing religious need that would justify an
accommodation. In addition, any student desiring religious instruction is free to
seek it out on his own time from his parents, house of worship or through
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enrollment in a private religious school.10
The School District has not proven that
a failure to provide the Program would result in a substantial burden on the free
exercise rights ofany students. The Program, in short, is not even necessary, let
alone needed to further a compelling state interest. As expanded by the Credit
Policy, it is not narrowly tailored to serve such supposed interest, either, because it
is not limited to the sort of passive schedule adjustment permitted byZorach.
In addition to being unjustified by any compelling state interest, the Program
raises a troubling concern. Were it to become a popular option for School District
students, as the adoption of the Credit Policy intends, schools would become
divided along religious lines, with secular students left behind in mostly empty
classrooms as their religious counterparts leave campus en masse during those
times of the school day when the Program provides for released time. This sort of
physical separation11
of public school students along the lines of a suspect
10Religious groups have the right under the Free Exercise Clause to maintain their
own private religious schools. They do not have the right to insist that the state
provide them with religious education. See Evans v. Newton, 382 U.S. 296, 300
(1966) (stating that [w]hile a State may not segregate public schools so as to
exclude one or more religious groups, those sects may maintain their own
parochial educational systems), citing Pierce v. Society of Sisters, 268 U.S. 510
(1925).11
InBrown v. Board of Education, 347 U.S. 483, 495 (1954), the Supreme Court
famously declared that [s]eparate educational facilities are inherently unequal.In this case, the School District forbids SCBEST from providing religious
instruction on school property. The released time courses are conducted at a
church adjacent to Spartanburg High School. Thus, the Program creates a situation
analogous to that in Brown: religious students receive public school credit for
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classification echoes one which federal courts forced South Carolina to abandon, in
the face of a shamefully great amount of resistance, in the twentieth century: racial
segregation.
Just as it has with racial segregation, the Supreme Court has rejected
religious segregation in public education. See Board of Educ. of Kiryas Joel
Village School Dist. v. Grumet, 512 U.S. 687, 728 (1994) (Kennedy, J., concurring,
stating that just as the government may not segregate people on account of their
race, so too it may not segregate on the basis of religion). As Justice Kennedy
pointed out in Kiryas Joel, the danger of stigma and stirred animosities is no less
acute for religious line-drawing than for racial. Id. The Supreme Court has
further recognized that [w]hen racial or religious lines are drawn by the State, the
multiracial, multireligious communities that our Constitution seeks to weld
together as one become separatist. Shaw v. Reno, 509 U.S. 630, 648-649 (1993).
For constitutional purposes, it does not matter whether the School District
segregates students entirely or just for one class. It is, quite simply, a line drawn
on the basis of a suspect classification. Regents of University of California v.
Bakke, 438 U.S. 265, 289 (1978). The Credit Policy expressly limits the Program
to religious instruction just as the preference program in Bakke expressly limited
classes held on a separate campus which only religious students attend. Although
such separation was upheld as a general matter under the Establishment Clause in
Zorach, that case preceded Brown by 2 years and no Equal Protection Clause
challenge was raised.
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access to certain slots for admission to a medical school to racial minorities. Such
express use of suspect classifications is automatically subject to strict scrutiny.
It also does not matter whether the School District acted with discriminatory
intent in adopting the Credit Policy and establishing the Program. Because the
Credit Policy on its face makes use of a suspect classification, intent need not be
proven for a court to conclude that the Program violates the Equal Protection
Clause. See e.g.Faulkner v. Jones, 51 F. 3d 440, 444 (4th
Cir. 1995) (stating that
[a]lthough facially neutral statutes which have a discriminatory impact do not
violate the Equal Protection Clause unless discriminatory intent can be
demonstrated, discriminatory intent need not be established independently when
the classification is explicit.)
As the Supreme Court has repeatedly recognized, denial of equal
opportunity is not the only harm created by discrimination in education. It also
creates a sense of inferiority and outsider status in affected minority students, such
as, in this case, atheists.12
The Court ha[s] repeatedly emphasized [that]
discrimination itself, by perpetuating archaic and stereotypic notions or by
stigmatizing members of the disfavored group as innately inferior and therefore
as less worthy participants in the political community . . . can cause serious
12According to a recent study, 16.1% of Americans are atheist, agnostic or
otherwise have no religion. The Pew Forum on Religion in Public Life, U.S.
Religious Landscape Survey, 5 (2008) http://religions.pewforum.org/pdf/report-
religious-landscape-study-full.pdf.
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noneconomic injuries to those persons who are personally denied equal treatment
solely because of their membership in a disfavored group . Hecklerv. Mathews,
465 U.S. 728, 739-40 (1984); see alsoBrown v. Board of Education, 347 U.S. 483,
494 (1954) (stating that segregation generates a feeling of inferiority as to [the]
status [of minority students] in the community that may affect their hearts and
minds in a way unlikely ever to be undone) and City of Richmond v. J.A. Croson
Co., 488 U.S. 469, 493-94 (1989) (stating that suspect classifications carry a
danger of stigmatic harmand may promote notions of . . . inferiority and lead to
a politics of . . . hostility). This sort of stigmatic harm is one of the most serious
consequences of discriminatory government action and one of the most serious
injuries recognized in our legal system. Allen v. Wright, 468 U.S. 737, 755, 756
(1984).13
13The facts ofIllinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71,
Champaign County, 333 U.S. 203, 209210 (1948), are demonstrative of the typeof social stigmatization a released time program can create. In that case, a
nonreligious student, along with just five others, did not participate in the
religious education classes during the first semester, and were separated from
most of their classmates while the religious instruction occurred. People ex rel.
McCollum v. Board of Ed. of School Dist. No. 71 , 396 Ill. 14, 71 N.E.2d 161, 162(Ill. 1947). By the second semester he was alone in not participating therein. Id.
When other members of his class were attending the religious education classeshe continued his regular studies in the music room under the supervision of his
regular teacher. Id. On one occasion he was placed at a desk in the hall whereapparently he was teased by passing children who thought he was being punished.
Id.
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Nonreligious students encounter an additional unique sort of stigmatic harm.
Unlike racial minorities, the status of religious minorities, such as atheists, as such
is not immediately evident to observers. Physical segregation of the nonreligious,
however, such as through a released time program, can effectively out such
students to their fellow students, teachers and the wider community. Such
unwanted revelation of outsider status can have a devastating effect on the social
standing of a high school student, already subject to significant peer pressure to
conform, as those bigoted against the nonreligious become aware of his or her
existence in their midst. Unfortunately, there is no question that nonreligious
citizens are members of a disfavored group in the United States. From colonial
blasphemy laws14
through the conflation of atheism and communism during the
Cold War,15
until present,16
atheists are perhaps the most hated minority in
14See e.g.,Com. v. Kneeland, 37 Mass. 206, 1838 WL 2655(Mass. 1838).
15 [T]he amendment . . . which inserted the words under God, into the Pledge
of Allegiance was significant [i]n an age in which our principal concern is with
the spreadof atheistic communism. Memorial Addresses Delivered in Congress,
Louis C. Rabaut, 87th Cong. 2nd Sess., United States Government Printing OfficeWashington, 1, 45 (1962).16
Even after the September 11th
attacks, a study revealed that while a significant
number of Americans would be reluctant to vote for a well-qualified Muslim
candidate (38%), many more expressed reservations about voting for an atheist
candidate (52%). The Pew Forum on Religion & Public Life,News Release, July
24, 2003: Many Wary of Voting For an Atheist or a Muslim, 1, 10-14 (2003).
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America.17
South Carolina and the surrounding Southern states in particular are
the most religious in the country, and therefore are a particularly hostile place to be
nonreligious.18
It is the duty of our public schools to protect their students from
discrimination, not to either discriminate against such students themselves or to
create and foster the circumstances under which others do so.
In conclusion, the Program divides the School Districts students on the
basis of religion, a suspect classification. Because students are free to seek
religious instruction on their own time or from enrollment full time in a private
religious school, if they so choose, the School District has no compelling interest in
providing such instruction to such students during school hours, let alone in
awarding credit for it. Even if it did, the Credit Policy has expanded the program
beyond permissible, passive accommodation of religion and so is not narrowly
17Penny Edgell, Joseph Gerteis, Douglas Hartmann, Atheists as Other: Moral
Boundaries and Cultural Membership in American Society, Am. Soc. Rev. Vol. 71,
211 (2006).18
In 1990, 0.2% of the population in South Carolina was agnostic, while 93%
identified as Christian. Kosmin, B. & S. Lachman. One Nation Under God:Religion in Contemporary American Society; Harmony Books: New York (1993),
pg. 88-93. A 2008 Gallup Poll revealed that South Carolina is the third mostreligious state[] in the nation. Frank Newport, State of States: Importance of
Religion (January 28, 2009) available at http://www.gallup.com/poll/114022/state-
states-importance-religion.aspx#1, retrieved May 17, 2011 ([c]learly, Southernstates are populated by residents with relatively high religiosity.).
http://www.gallup.com/poll/114022/state-states-importance-religion.aspx#1http://www.gallup.com/poll/114022/state-states-importance-religion.aspx#1http://www.gallup.com/poll/114022/state-states-importance-religion.aspx#1http://www.gallup.com/poll/114022/state-states-importance-religion.aspx#1http://www.gallup.com/poll/114022/state-states-importance-religion.aspx#18/6/2019 Moss Amicus Brief
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tailored to advance such interest. The Program therefore violates the Equal
Protection Clause.
The Supreme Court has often recognized that the victims of a
discriminatory government program may be remedied by an end to preferential
treatment for others. Hecklerat 740 n. 8 (1984).19
In this case, we ask the court
to end the unconstitutional preferential treatment of religious students embodied in
the Program and the Credit Policy by declaring them unconstitutional.
CONCLUSION
For the foregoing reasons, amici curiae respectfully request that the
judgment of the United States District Court for the District of South Carolina be
reversed.
Respectfully submitted,
/s/ WILLIAM J. BURGESS
William J. Burgess
Appignani Humanist Legal Center
American Humanist Association
Counsel for amici curiae
June 30, 2011
19As the Supreme Court noted inHeckler, when the right invoked is that of equal
treatment, the appropriate remedy is a mandate of equal treatment, a result that
can be accomplished by withdrawal of benefits from the favored class as well as by
extension of benefits to the excluded class. Heckler at 740, citing Iowa-Des
Moines National Bank v. Bennett, 284 U.S. 239, 247 (1931).
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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that this brief
contains 5,686 words, excluding the portions of the brief exempted by Fed. R.
App. P. 32(a)(7)(B)(iii), and has been prepared in a proportionally spaced typeface
using Microsoft Word 2007 in Times New Roman 14-point font.
/s/ William Burgess
William Burgess
American Humanist Association
Dated this 30th
day of June 2011
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CERTIFICATE OF SERVICE
I hereby certify that on this 30th
day of June, 2011, the foregoing Brief for
amici curiaewas filed with the Courts ECF system, and accordingly was served
electronically on all parties.
/s/ William Burgess
William Burgess
American Humanist Association