Moss Amicus Brief

8/6/2019 Moss Amicus Brief

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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


/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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17

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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19

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#1


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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


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


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


Documents

Moss Amicus Brief