Thanks to Mark Walsh for information about the case provided in his Education Law Association blog.
In 2006, the South Carolina legislature passed a law allowing academic credit for public school students who receive instruction in private religious schools during released-time. Such programs allow public school students to be released from classes during the day so they can receive religious instruction. Spartanburg County established a policy allowing students to receive two (2) academic credits for off-campus religious instruction.
Spartanburg Bible School operated a released-time program and provided a promotional flier through Spartanburg High School. The program was challenged by a family of non-Christians who stated that they felt like outsiders because the district favored Christianity.
The family was supported in their challenge by the Freedom from Religion Foundation. The challenge acknowledged that released-time for religious instruction was constitutional based on Zorach v. Clausen. In this 1952 decision, the Supreme Court allowed a released-time program where students left school, with parental permission, to receive instruction off school property. In an earlier decision in 1948, the Supreme Court had ruled in McCollum v. Board of Education that a released time program was unconstitutional when the instruction was delivered on school grounds.
The parent’s challenge was around the constitutionality of allowing academic credit in a public school for religious instruction during released-time arguing that allowing such credit was an unconstitutional government establishment of religion. Last week, the U.S. Supreme Court declined to hear,without comment, the appeal allowing the decision of the U. S. Court of Appeals for the 4th Circuit in Richmond to stand.
Last June, a three-judge panel from the 4th Circuit unanimously upheld the program as constitutional. The judges ruled that the program was a reasonable accommodation for religious families even though the Bible school was unaccredited. See Moss v. Spartanburg County School District (http://www.ca4.uscourts.gov/Opinions/Published/111448.P.pdf).
There is a history within the 4th Circuit around released-time programs. In 1975, the 4th Circuit upheld a released-time program when instruction was provided off school grounds as long as school staff neither encouraged or discouraged participation (Smith v. Smith, 523 F.2d 21). In Doe v. Shenandoah County School Board, 737 F. Supp. 913 (1990), the Western District Court of Virginia issued a restraining order to prevent a released time program because teachers encouraged students to attend. That case can be accessed online at: http://www.leagle.com/xmlResult.aspx?xmldoc=19901650737FSupp913_11488.xml&docbase=CSLWAR2-1986-2006.
