Thursday, February 6, 2014

Public School Credit for Private Religious Instruction: Did the Fourth Circuit Get It Right?

In August 2012, the Fourth Circuit Court of Appeals in Moss v. Spartanburg County School District Seven, 683 F.3d 599, (2012), held that a South Carolina statute that allowed public schools to give public school credit for private religious instruction did not violate the First Amendment’s prohibition of establishment of religion. The court reasoned that

The School District employed a model in which primary 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 accommodate the desires of parents and students to participate in private religious education in Spartanburg County while avoiding the potential perils inherent in any governmental assessment of the “quality” of religious instruction.

A new article by Samuel R. V. Garland-- Moss v. Spartanburg County: How the Fourth Circuit Got it Wrong and What it Means for the Future, 48 Wake Forest L. Rev. 1075 (Fall 2013)--dissects this case.  He argues that the Fourth Circuit effectively collapsed the three separate prongs from Lemon v. Kurtzman into a singular conclusory analysis about the statute's constitutionality.  Separate consideration of each Lemon prong, or application of the coercion or endorsement tests from other Supreme Court holdings, would have demonstrated that the statute was unconstitutional.

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