Robert Moss v. Spartanburg County School District , 683 F.3d 599 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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
 No. 11-1448
DISTRICT SEVEN, a South Carolina
body politic and corporate,
Defendant-Appellee.
AMERICAN HUMANIST ASSOCIATION;
SECULAR STUDENT ALLIANCE,
Amici Supporting Appellants,

2 MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT
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.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., Senior District Judge.
(7:09-cv-01586-HMH)
Argued: March 20, 2012
Decided: June 28, 2012
Before NIEMEYER, GREGORY, and WYNN,
Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Gregory and Judge Wynn joined.
MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT 3
COUNSEL
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. Knif-
fin, BECKET FUND FOR RELIGIOUS LIBERTY, Wash-
ington, 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, Colum-
bia, 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, NEL-
SON MULLINS RILEY & SCARBOROUGH, LLP, Colum-
bia, 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 GEN-
ERAL, 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.
OPINION
NIEMEYER, Circuit Judge:
In 2007, South Carolina’s Spartanburg County School Dis-
trict Seven adopted a policy allowing public school students
4 MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT
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 imper-
missibly endorses religion and entangles church and State, in
violation of the Establishment Clause of the First Amend-
ment.
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 accommo-
dating students’ desire to receive religious instruction. The
plaintiffs filed a cross-motion for summary judgment, arguing
that that the purpose and primary effect of the School Dis-
trict’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 judg-
ment 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 instruc-
tion. 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 elimi-
nated the school districts’ ability to accommodate parents’
and students’ desires to participate in released time pro-
grams," 2006 S.C. Acts 322, and it responded by enacting the
Released Time Credit Act. The Released Time Credit Act
provides in part:
MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT 5
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 denomina-
tional 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
6 MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT
adopted a released time policy, dated March 6, 2007. The pol-
icy 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 fac-
ulty . . . 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 edu-
cation 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.
MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT 7
Following the School District’s preference, Spartanburg
Bible School entered into an arrangement with Oakbrook Pre-
paratory 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 Spar-
tanburg 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 Spar-
tanburg 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 coun-
selors with flyers, the counselors were authorized to discuss
Spartanburg Bible School or the flyers with parents and stu-
dents 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 col-
lege 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 Spar-
tanburg Bible School.
The plaintiffs—Robert Moss, the parent of Melissa Moss,
who attended Spartanburg High School and has now gradu-
8 MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT
ated; Melissa Moss, in her own right; Ellen Tillett, for herself
and on behalf of her minor child who attends Spartanburg
High School; and the Freedom From Religion Foundation,
Inc.—commenced this action in June 2009 against School
District Seven, pursuant to 42 U.S.C. § 1983, alleging that
School District Seven’s released time policy violates the
Establishment Clause of the U.S. Constitution.
The record shows that neither of the two student plaintiffs
participated in the Spartanburg Bible School course, nor did
they claim to have been harassed in any way for not so partic-
ipating. Moreover, both students were not adversely affected
by released time grades, as they had higher GPAs than any of
their classmates who did participate in the Spartanburg Bible
School course. The student plaintiffs also did not claim to
have seen Spartanburg Bible School personnel on Spartan-
burg High School grounds or to have encountered at the High
School any efforts at advertising or promoting the Spartan-
burg Bible School. The Mosses, however, did receive a pro-
motional letter in the mail from Spartanburg Bible School,
which indicated that the school would be conducting a
released time course which "will be available for elective
credit to students who attend Spartanburg High School." The
course would "help students learn the basic tenets of the
Christian worldview," and it would teach students "how they
ought to live as a result of what they have learned." While the
School District did provide Spartanburg Bible School with the
addresses of students so that it could send the promotional let-
ter, School District and high school officials did not review or
approve the letter before it was sent.
On the parties’ cross-motions for summary judgment, the
district court entered judgment in favor of School District
Seven. In doing so, the court applied the framework estab-
lished in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971),
and concluded that the School District’s released time policy
did not violate the three-part Lemon test adopted for enforcing
the Establishment Clause. As to the first prong, focusing on
MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT 9
purpose, the court concluded that the School District’s "stated
purpose for its release time program, the accommodation of
religion, [was] plausible and therefore [had to] be accepted";
that this purpose was secular; and that the plaintiffs "have
failed to show that the School District harbored an impermis-
sible religious motive." On the second prong, focusing on
effect, the court concluded that the plaintiffs failed to establish
that "the adoption and implementation of the School District’s
released time policy ha[d] the principal effect of advancing
religion" and that, viewed from the perspective of an objec-
tive observer, the School District’s policy "[did] no more than
merely accommodate students’ desire to partake in religious
instruction." Finally, with respect to the third prong, focusing
on entanglement, the court concluded,
By limiting the acceptance of academic credit [to
grades] from accredited schools, the School Dis-
trict’s released time policy was designed to disentan-
gle the School District from reviewing the religious
content of released time instruction. The policy
[was] cast in neutral terms and allow[ed] its students
to petition for released time religious instruction
regardless of the specific religion or denomination.
Plaintiffs have failed to show how the School Dis-
trict’s passive acceptance of academic credit for reli-
gious instruction constitute[d] excessive entangle-
ment with religion.
From the district court’s judgment, dated April 5, 2011, the
plaintiffs filed this appeal.
II. Standing
The School District contends first that plaintiffs lack stand-
ing to challenge the constitutionality of the released time pol-
icy because they were not injured by the policy.
The Constitution limits the jurisdiction of federal courts to
resolving "Cases" and "Controversies." U.S. Const. art. III,
10 MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT
§ 2, cl. 1. One aspect of the case-or-controversy requirement
is that a federal lawsuit must seek to prevent or redress an
"actual or imminently threatened injury" to the plaintiff. Sum-
mers v. Earth Island Inst., 555 U.S. 488, 492 (2009). Plain-
tiffs may not establish their standing to bring suit merely
because they disagree with a government policy, see Ariz.
Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1449
(2011), or because they share the "generalized interest of all
citizens in constitutional governance," Schlesinger v. Reserv-
ists Comm. to Stop the War, 418 U.S. 208, 217 (1974).
Relying on cursory remarks about standing in the footnotes
of two Supreme Court decisions, the plaintiffs propose that
we 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 or can prove personal injury. See Sch.
Dist. of Abington v. Schempp, 374 U.S. 203, 224 n.9 (1963)
(finding standing where students and parents were "directly
affected by the laws and practices against which their com-
plaints are directed"); Zorach v. Clauson, 343 U.S. 306, 309
n.4 (1952) (finding standing because, "unlike the appellants in
[Doremus v. Board of Education, 342 U.S. 429 (1952)]
. . . , appellants here are parents of children currently attend-
ing schools subject to the released time program").
The plaintiffs’ argument, however, reads far too much into
the unremarkable discussions of standing in Schempp and
Zorach. Neither case justifies the sweeping conclusion that
parents and students currently in school may challenge the
constitutionality of school policies without demonstrating that
they were personally injured in some way by those policies.
The Zorach footnote merely states that one of the impedi-
ments that undermined standing in Doremus—specifically,
the child of the parent plaintiff had graduated since the com-
plaint was filed and therefore was no longer subject to the
school’s allegedly unconstitutional policies—did not present
a problem in Zorach because the affected students were still
MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT 11
attending the school. And Schempp, far from suggesting that
all students or parents have standing to object to unconstitu-
tional school policies, conferred standing only because the
students bringing suit were "directly affected by the laws and
practices against which their complaints [were] directed." 374
U.S. at 224 n.9 (emphasis added).
While the plaintiffs are not exempt from the basic constitu-
tional requirement that they be injured and thus have a con-
crete stake in the dispute, we have nonetheless recognized that
standing principles must be "tailored to reflect the kind of
injuries Establishment Clause plaintiffs are likely to suffer."
Suhre v. Haywood Cnty., 131 F.3d 1083, 1086 (4th Cir.
1997). Many of the harms that Establishment Clause plaintiffs
suffer are "spiritual" and "value-laden," rather than tangible
and economic. ACLU v. Rabun Cnty. Chamber of Commerce,
Inc., 698 F.2d 1098, 1102 (11th Cir. 1983). Consequently,
plaintiffs have been found to possess standing when they are
"spiritual[ly] affront[ed]" as a result of "direct" and "unwel-
come" contact with an alleged religious establishment within
their community. Suhre, 131 F.3d at 1086-87; see also Sala-
din v. City of Milledgeville, 812 F.2d 687, 693 (11th Cir.
1987) (concluding that Establishment Clause plaintiffs "have
more than an abstract interest" in their claims when they are
"part of [the relevant community] and are directly affronted").
Nonetheless, we must guard against efforts to use this princi-
ple to derive standing from the bare fact of disagreement with
a government policy, even passionate disagreement premised
on Establishment Clause principles. Such disagreement, taken
alone, is not sufficient to prove spiritual injury. See Valley
Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 486-87 & n.22 (1982)
(holding that plaintiffs, who resided in Maryland and Vir-
ginia, lacked standing to challenge a property transfer in
Pennsylvania, and rejecting the argument that "any person
asserting an Establishment Clause violation possesses a ‘spiri-
tual stake’ sufficient to confer standing").
12 MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT
With these principles in hand, we now address the standing
of the plaintiffs, taking their circumstances separately, as they
differ.
A. Ellen Tillett, her child, and the Foundation
The facts to support standing for Ellen Tillett and her child
are notably thin. They had no personal exposure to the Spar-
tanburg Bible School course apart from their abstract knowl-
edge of the School District’s released time policy. Moreover,
they have alleged nothing to suggest that the policy or the
Bible School course injured them in any way. Tillett’s child
never participated in the course and had not been pressured or
encouraged to attend the course by anyone. Neither Tillett nor
her child suffered any adverse repercussions from the child’s
decision not to enroll in the course. And the child’s GPA was
higher than that of any student in the child’s class who took
the Spartanburg Bible School course.
Moreover, Ellen Tillett did not receive the promotional let-
ter from Spartanburg Bible School, as her child had not
entered high school at the time the letter was sent. She was
told about the letter by Heidi Moss, Robert Moss’ wife, and
only read it in preparation for this litigation. Tillett claims that
after reading the letter, she found it to be "offensive" because
it reflected "intolerance and narrow-mindedness . . . in what
should be an open learning environment." Tillett testified that
the School District’s policy also made her child "feel like an
outsider" at Spartanburg High School because it made him
aware of the prevalence of intolerance in his community. Til-
lett has not suggested, however, that either she or her child
altered conduct as a result of the released time policy.
Tillett’s allegations amount to little more than simple dis-
agreement with the wisdom of the School District’s policy.
Tillett and her child do not suggest that they were the targets
or victims of this alleged religious intolerance—indeed, they
are Christians. Thus they are seeking to vindicate, not their
MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT 13
own rights, but the rights of others. In these circumstances,
we conclude that Tillett and her child lack standing to chal-
lenge the School District’s released time policy. See Barrows
v. Jackson, 346 U.S. 249, 255 (1953) ("Ordinarily, one may
not claim standing in this Court to vindicate the constitutional
rights of some third party").
Our conclusion that Tillett was not injured by the School
District’s policy requires the further conclusion that the Free-
dom From Religion Foundation also lacks standing. For an
organization to have standing, it must establish that "at least
one identified member had suffered or would suffer harm"
from the defendant’s conduct. Summers, 555 U.S. at 498; see
also Sierra Club v. Morton, 405 U.S. 727, 739 (1972) ("[A]n
organization whose members are injured may represent those
members in a proceeding for judicial review. But a mere
‘interest in a problem,’ no matter how longstanding the inter-
est and no matter how qualified the organization is in evaluat-
ing the problem, is not sufficient" (citation omitted)). Because
Tillett is a member of the Foundation and the Foundation has
relied exclusively on her alleged injury to support its standing,
its claim to standing rises or falls with Tillett. Thus, because
Tillett lacks standing, so too does the Foundation.
B. The Mosses
Melissa Moss shares several similarities with Tillett’s child.
She, too, never took the Spartanburg Bible School course; she
was never harassed for refusing to enroll; and she graduated
with a higher GPA than any student in her class who had
received a grade for the Spartanburg Bible School course. But
other factors place both Melissa Moss and Robert Moss in a
position different from Tillett and her child with respect to
injury and standing.
First, Robert Moss did receive the promotional letter from
Spartanburg Bible School describing its course of religious
education. The letter described the course’s Christian content
14 MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT
and stated that the course could be taken for elective credit at
Spartanburg High School. Robert discussed the letter with
Melissa, and both came to the view that it was part of a
broader pattern of Christian favoritism on the part of Spartan-
burg High School and the School District.
Second, because the Mosses are not Christians, the School
District’s alleged Christian favoritism made them feel like
"outsiders" in their own community. They claim that the letter
suggested that the School District was endorsing Evangelical
Christianity and disfavoring other religious traditions, includ-
ing the Jewish tradition to which they belong. They claim that
the Spartanburg Bible School course was merely one instance
of a broader pattern of Christian favoritism by the School Dis-
trict, which they stated was evidenced by prayers and other
Christian references by school-sponsored adults at school
events. Feelings of marginalization and exclusion are cogniza-
ble forms of injury, particularly in the Establishment Clause
context, because one of the core objectives of modern Estab-
lishment Clause jurisprudence has been to prevent the State
from sending a message to non-adherents of a particular reli-
gion "that they are outsiders, not full members of the political
community." McCreary Cnty. v. ACLU, 545 U.S. 844, 860
(2005) (emphasis added).
Finally, Robert and Melissa Moss testified that they
changed their conduct in adverse ways as a result of their per-
ceived outsider status. Robert became less involved as a vol-
unteer parent at Spartanburg High School, and Melissa
decided to go to a college outside of South Carolina because,
in part, she felt excluded in her home community. For pur-
poses of standing, these "change[s in] personal conduct on
account of" allegedly unlawful conduct are indicative of
injury. Suhre, 131 F.3d at 1087-88; see also Friends of Earth,
Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 184-85
(2000).
For these reasons, we conclude that Robert and Melissa
Moss have standing to bring this action.
MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT 15
III. Establishment Clause
The Mosses concede that off-campus released time initia-
tives are generally constitutional, as allowed by Zorach v.
Clauson, 343 U.S. 306 (1952); see also Smith v. Smith, 523
F.2d 121 (4th Cir. 1975). They contend, however, that the
School District’s released time program in this case is differ-
ent from that approved in Zorach because it provides aca-
demic credit for released time coursework, whereas such
credit was not part of the off-campus educational program
approved in Zorach. As they assert, "this giving of academic
credit is the centerpiece of this case." They argue that
awarding academic credit advances religion more
than does traditional released time. It alters the legal
relationship between public school and student for
religious reasons by giving a grade. It rewards a stu-
dent for religious participation. It tells the world that
the school approves of the student’s mastery of reli-
gious precepts that have been taught. . . . [Spartan-
burg Bible School] students are not just getting an
excused absence to pursue religious instruction; their
religious life is being promoted and approved.
The School District contends that its released time policy
is constitutional under the holdings of Zorach and Smith, and
the fact that the School District gives credit for the released
time course is, it argues, no different than the widely accepted
practice of giving course credit to students who transfer from
private religious schools to public schools. See Lanner v.
Wimmer, 662 F.2d 1349, 1361 (10th Cir. 1981) (generally
allowing school districts to grant academic credit to private
school transfer students and public school released time stu-
dents for their religious instruction). The School District
argues that its policy "simply makes it possible to accommo-
date parents’ and students’ wish for released time education."
The First Amendment states that "Congress shall make no
law respecting an establishment of religion," U.S. Const.
16 MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT
amend. I, and the Supreme Court has applied this principle
against the states through the Fourteenth Amendment, see
Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). To pass mus-
ter under the Establishment Clause, government 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 not excessively entangle church and State. See
Lemon, 403 U.S. at 612-13. The Supreme Court has imple-
mented these requirements, not through "a regime of total
separation" between church and State, Comm. for Pub. Educ.
& Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973), but
through a policy of "benevolent neutrality" that recognizes a
wide range of "permissible state accommodation" for religion,
Walz v. Tax Comm’n, 397 U.S. 664, 669, 673 (1970).
In 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 instruc-
tion.
The Court first addressed released time religious education
in Illinois ex rel. McCollum v. Board of Education, 333 U.S.
203 (1948), where it held unconstitutional an Illinois program
that released students from secular coursework to receive reli-
gious lessons delivered by privately employed religious teach-
ers on public school grounds. Id. at 205, 212. In explaining
its conclusion, the Court emphasized that "the state’s tax-
supported public school buildings [were] used for the dissemi-
nation of religious doctrines" in the context of compulsory
public education. Id. at 212.
A few years later, however, the Court considered and
upheld a released time program that allowed students to pur-
sue off-campus religious instruction at no cost to the public
school system. See Zorach v. Clauson, 343 U.S. 306 (1952).
The Zorach Court readily distinguished the program before it
from the one it had struck down in McCollum, explaining that
MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT 17
New York City’s public schools "do no more than accommo-
date their schedules to a program of outside religious instruc-
tion." Id. at 315. Because the school system displayed "no
partiality to any one [religious] group" and because the les-
sons were conducted off-campus, the Court concluded that the
New York City program "follows the best of our traditions"
by "respect[ing] the religious nature of our people and accom-
modat[ing] the public service to their spiritual needs." Id. at
313-14.
We have since concluded that Zorach remains good law
and held that an off-campus released time program satisfies
all three requirements of the Lemon test. See Smith, 523 F.2d
at 123-25. In Smith, we examined a Harrisonburg, Virginia
program permitting public school students to attend religious
courses held at trailers and churches in close proximity to
public schools and applied the holding of Zorach in light of
the post-Zorach framework set forth by the Supreme Court in
Lemon. We determined (1) that the purpose of the program
was secular in that "the schools aim[ed] only to accommodate
the wishes of the students’ parents"; (2) that the program
resulted in no more entanglement than did the program at
issue in Zorach; and (3) that the primary effect of the program
was not the impermissible advancement or endorsement of
religion, because the policy "is a largely passive and admin-
istratively wise response to a plenitude of parental assertions
of the right to direct the upbringing and education of children
under their control." Id. at 124-25 (internal quotation marks
omitted).
The distinctions between the released time program before
the Court in McCollum, on the one hand, and the programs at
issue in Zorach and Smith, on the other, guide the proper dis-
position of this case. In McCollum, the public school brought
religious instructors into the school to conduct classes in the
school’s classrooms, while students normally occupying those
classrooms for secular courses went elsewhere, and the
School District’s superintendent approved and supervised
18 MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT
each of the religious instructors brought into the school. In
invalidating the program, the Court noted that the State used
"the State’s tax-supported public school buildings" to "dis-
seminat[e] religious doctrines" and employed "the state’s
compulsory public school machinery" to provide religious
education to the students there. McCollum, 333 U.S. at 212.
By contrast, in Zorach and Smith, the public school permit-
ted students to leave school grounds to receive religious
instruction off campus and agreed to receive reports of the
students’ attendance at those classes. Under these circum-
stances, the Supreme Court and this court concluded that the
public schools did "no more than accommodate their sched-
ules to a program of outside religious instruction." Zorach,
343 U.S. at 315; see also Smith, 523 F.2d at 125. Indeed, the
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. Zorach, 343 U.S. at 314; see
also Ehlers-Renzi v. Connelly Sch. of the Holy Child, Inc.,
224 F.3d 283, 287 (4th Cir. 2000) (noting that the "autho-
rized, and sometimes mandatory, accommodation of religion
is a necessary aspect of the Establishment Clause jurispru-
dence because, without it, government would find itself effec-
tively and unconstitutionally promoting the absence of
religion over its practice").
Here, the School District’s released time policy takes place
off campus and expressly prohibits any use of public staff or
funds for its execution. The circumstances before us are there-
fore far more similar to those in Zorach and Smith than those
in McCollum.
The fact that a public school accepts credits for 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. The School District employed a model in which pri-
MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT 19
mary responsibility for evaluating released time courses lay
with accredited private schools, not the public schools. Thus,
under this model, an unaccredited entity, such as Spartanburg
Bible School, could offer a released time course and assign
grades to participating students for transfer to the public
school system if it received a stamp of approval from an
accredited private school. In this manner, the released time
grades are handled much like the grades of a student who
wishes to transfer from an accredited private school into a
public school within the School District; the public school
accepts the grades without individually assessing the quality
or subject matter of the course, trusting the private school
accreditation process to ensure adequate academic standards.
This model has enabled the School District to accommo-
date the desires of parents and students to participate in pri-
vate religious education in Spartanburg County while
avoiding the potential perils inherent in any governmental
assessment of the "quality" of religious instruction. These per-
ils were illustrated by Lanner v. Wimmer, 662 F.2d 1349(10th Cir. 1981), where the court invalidated part of a released
time program that awarded academic credit for some religious
courses, but not for those which were found to be "mainly
denominational." Id. at 1360-61. The court reasoned that the
program constitutionally entangled church and State by
requiring public school officials to apply a "religious test" to
"examin[e] and monitor[ ] the [religious] content of courses."
Id. at 1361. By contrast, the School District’s policy in this
case is not vulnerable to such concerns because it leaves the
monitoring function to private schools.
Also important to our conclusion 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. See Pierce
v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925). It would be
20 MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT
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 reli-
gion, the acceptance of transfer credits (including religious
credits) by public schools sensibly accommodates the "genu-
ine choice among options public and private, secular and reli-
gious." Zelman v. Simmons-Harris, 536 U.S. 639, 662 (2002)
(upholding an Ohio voucher initiative for this reason).
Apart from the central issue of academic credit, the plain-
tiffs also contend that the School District otherwise became
excessively entangled with the Spartanburg Bible School. In
particular, they claim that the School District not only accom-
modated, but actively promoted, the Spartanburg Bible
School course by allowing it to bring informational flyers to
the guidance counselor’s office; to host a table at the annual
student registration fair; and to visit homerooms so as to
solicit student participation. These arguments are unpersua-
sive in light of the record. School District officials carefully
maintained a neutral relationship with the Spartanburg Bible
School, neither encouraging nor discouraging student partici-
pation in the Bible School’s course. Spartanburg Bible School
did provide informational flyers to guidance counselors, but
the flyers were kept behind the counselors’ desks and distrib-
uted to parents and students only after the parents and stu-
dents expressed an interest in the Spartanburg Bible School
course. Furthermore, the School District’s policy of allowing
Spartanburg Bible School to attend an annual student registra-
tion fair was unremarkable, given that other nonreligious
organizations, such as military and college recruiters, were
accorded similar privileges. And finally, the record does not
show that the School District allowed representatives of Spar-
tanburg Bible School to visit homerooms in Spartanburg High
School. A single homeroom visit did occur at one of the
School District’s junior high schools, but the record suggests
MOSS v. SPARTANBURG COUNTY SCHOOL DISTRICT 21
that the incident was not repeated, and in any event, such vis-
its never occurred at Spartanburg High School.
At bottom, because the School District’s released time pol-
icy relies exclusively on the provision of off-campus religious
instruction by nongovernmental educators and passively
accommodates the "genuine and independent choices" of par-
ents and students to pursue such instruction, Zelman, 536 U.S.
at 649, we affirm the district court’s judgment.
IV
Pursuant to the Released Time Credit Act, which the South
Carolina General Assembly enacted on its finding that "[t]he
free exercise of religion is important to the intellectual, moral,
civic, and ethical development of students in South Carolina,"
2006 S.C. Acts 322, Spartanburg County School District
Seven adopted a released time program which it administered
in a religiously neutral manner. We see no evidence that the
program has had the effect of establishing religion or that it
has entangled the School District in religion. As was the Gen-
eral Assembly and School District’s purpose, the program
properly accommodates religion without establishing it, in
accordance with the First Amendment.
AFFIRMED