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 Court for the District of South Carolina Spartanburg Division
BRIEF AMICI CURIAE OF THE AMERICAN HUMANIST ASSOCIATION AND 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

RULE 26.1 CERTIFICATION Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae the American 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 publicly held entity has a direct financial interest in the outcome of this litigation by reason of a franchise, lease, other profit sharing agreement, insurance, or indemnity agreement due to the participation of the amici.

/s/ William Burgess William Burgess American Humanist Association

/s/ August E. Brunsman IV August E. Brunsman IV Secular Student Alliance

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TABLE OF CONTENTS RULE 26.1 CERTIFICATION .................................................................................. i STATEMENT OF IDENTITY AND INTERESTS OF AMICI CURIAE AND 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 advance religion 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 Heckler v. 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). ................22 Lee 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 Statutes S.C. Code Ann. 591460(A). .................................................................................6 S.C. Code Ann. 59-39-112(A)(2006). .....................................................................1 S.C. Code. Ann. 5939112(A). ..............................................................................7 SC LEGIS 241 (2002). ...............................................................................................7 Other Authorities Frank Newport, State of States: Importance of Religion (January 28, 2009) available at http://www.gallup.com/poll/114022/state-states-importancereligion.aspx#1, retrieved May 17, 2011 ..............................................................21 Kosmin, 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-studyfull.pdf. .................................................................................................................18 Constitutional Provisions U.S. Const. amend. I. .................................................................................................3 U.S. Const. Amend. XIV, 1. .................................................................................13

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STATEMENT OF IDENTITY AND INTERESTS OF AMICI 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

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), citing Lemon 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 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. 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

The 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.

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 the Lemon 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

The 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 of Zorach 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 of Lemon. 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 in Zorach 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 to persuade . . . 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 of Zorach and violates the Establishment Clause. See School Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 275-276 (1963) (Douglas, J.,

concurring, citing with approval4 State 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

Although Frazier declared the program at issue invalid under a state constitution, the courts objections to the program apply with equal force under the federal constitution. In Schempp, Justice Douglas observed that [t]he last quarter of the nineteenth century found the courts beginning to question the constitutionality of public school religious exercises. The legal context was still, of course, that of the state constitutions, since the First Amendment had not yet been held applicable to state action. Id. at 275 (Douglas J., concurring). He continued, the state constitutional 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 Frazier were 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 1992 accommodated 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 released time 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 actively enticing 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 the Credit 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 advance religion 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

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

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, the essential principle remains the same. Allegheny at 593-4. These words and concepts 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

This 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 past full-time study at private religious schools is significantly different from the phony transfer credit ostensibly 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 of secular public schools by students who are currently attending private religious schools without having to start 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

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 at all).
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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. Bullock at 16, citing Estate of Thornton at 711 (emphasis added, internal quotation marks omitted). Second, the District Court overstated the holding of Zorach 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 (citing Zorach at 314). The District Courts citation to Zorach 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 divides students 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 also Ball 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 only for 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

The 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. (2003).

Grutter v. Bollinger, 509 U.S. 306, 326

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 of any 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 by Zorach. 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

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Religious 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 In Brown v. Board of Education, 347 U.S. 483, 495 (1954), the Supreme Court famously declared that [s]eparate educational facilities are inherently unequal. In this case, the School District forbids SCBEST from providing religious instruction on school property. The released time courses are conducted at a church adjacent to Spartanburg High School. Thus, the Program creates a situation analogous to that in Brown: religious students receive public school credit for
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classification echoes one which federal courts forced South Carolina to abandon, in the face of a shamefully great amount of resistance, in the twentieth century: racial segregation. Just as it has with racial segregation, the Supreme Court has rejected religious segregation in public education. See Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 728 (1994) (Kennedy, J., concurring, stating that just as the government may not segregate people on account of their race, so too it may not segregate on the basis of religion). As Justice Kennedy pointed out in Kiryas Joel, the danger of stigma and stirred animosities is no less acute for religious line-drawing than for racial. Id. The Supreme Court has further recognized that [w]hen racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist. Shaw v. Reno, 509 U.S. 630, 648-649 (1993). For constitutional purposes, it does not matter whether the School District segregates students entirely or just for one class. It is, quite simply, a line drawn on the basis of a suspect classification. Regents of University of California v. Bakke, 438 U.S. 265, 289 (1978). The Credit Policy expressly limits the Program to religious instruction just as the preference program in Bakke expressly limited classes held on a separate campus which only religious students attend. Although such separation was upheld as a general matter under the Establishment Clause in Zorach, that case preceded Brown by 2 years and no Equal Protection Clause challenge was raised.
17

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
12

According 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/reportreligious-landscape-study-full.pdf.
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noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group. Heckler v. Mathews, 465 U.S. 728, 739-40 (1984); see also Brown 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 harm and 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

13

The facts of Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign County, 333 U.S. 203, 209210 (1948), are demonstrative of the type of 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 classes he 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 where apparently 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

14 15

See e.g., Com. v. Kneeland, 37 Mass. 206, 1838 WL 2655 (Mass. 1838). [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 spread of atheistic communism. Memorial Addresses Delivered in Congress, Louis C. Rabaut, 87th Cong. 2nd Sess., United States Government Printing Office Washington, 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

17

Penny 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 most religious state[] in the nation. Frank Newport, State of States: Importance of Religion (January 28, 2009) available at http://www.gallup.com/poll/114022/statestates-importance-religion.aspx#1, retrieved May 17, 2011 ([c]learly, Southern states are populated by residents with relatively high religiosity.).
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tailored to advance such interest. Protection Clause.

The Program therefore violates the Equal

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. Heckler at 740 n. 8 (1984).19 In this case, we ask the court to end the unconstitutional preferential treatment of religious students embodied in the Program and the Credit Policy by declaring them unconstitutional. CONCLUSION

For the foregoing reasons, amici curiae respectfully request that the judgment of the United States District Court for the District of South Carolina be reversed. Respectfully submitted, /s/ WILLIAM J. BURGESS William J. Burgess Appignani Humanist Legal Center American Humanist Association Counsel for amici curiae June 30, 2011
19

As the Supreme Court noted in Heckler, when the right invoked is that of equal treatment, the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class. Heckler at 740, citing Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 247 (1931).
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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that this brief contains 5,686 words, excluding the portions of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in Times New Roman 14-point font.

/s/ William Burgess William Burgess American Humanist Association Dated this 30th day of June 2011

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CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of June, 2011, the foregoing Brief for amici curiae was filed with the Courts ECF system, and accordingly was served electronically on all parties. /s/ William Burgess William Burgess American Humanist Association