Key point. Released time programs, which allow public school students to receive religious instruction off campus during school hours, do not violate the First Amendment’s prohibition of any establishment of religion.

A federal appeals court ruled that a “released time” program that granted limited academic credit to public high school students for receiving religious instruction off campus during school hours did not violate the First Amendment’s prohibition of an establishment of religion. Since 1992, a number of school districts in South Carolina have allowed students to be released for part of the school day in order to receive off-campus religious instruction. Initially, the students who availed themselves of this opportunity did not receive grades or academic credit, which made enrollment difficult for some students. In 2006, the South Carolina General Assembly found that “the absence of an ability to award academic credit had essentially eliminated the school districts’ ability to accommodate parents’ and students’ desires to participate in released time programs,” and it responded by enacting the Released Time Credit Act. The Released Time Credit Act allows students to receive up to two hours of academic credit for participating in a released time program, subject to various conditions.

The Freedom from Religion Foundation and other plaintiffs filed a lawsuit in federal court claiming that this released time program constituted an “establishment of religion” barred by the First Amendment. The plaintiffs conceded that the United States Supreme Court had previously ruled that released time programs were constitutionally permissible, but they insisted that the South Carolina program was different because it granted academic credit. A federal district court ruled that this was a distinction without a difference, and it found the program constitutional. A federal appeals court agreed:

Important to our conclusion is the governing principle that private religious education is an integral part of the American school system. Indeed, States are constitutionally obligated to allow children and parents to choose whether to fulfill their compulsory education obligations by attending a secular public school or a religious private school. It would be strange and unfair to penalize such students when they attempt to transfer into the public school system by refusing to honor the grades they earned in their religious courses, potentially preventing them from graduating on schedule with their public school peers. Far from establishing a state religion, the acceptance of transfer credits (including religious credits) by public schools sensibly accommodates the “genuine choice among options public and private, secular and religious.”

The court concluded: “At bottom, because the … released time policy relies exclusively on the provision of off-campus religious instruction by nongovernmental educators and passively accommodates the genuine and independent choices of parents and students to pursue such instruction, we affirm the district court’s judgment …. We see no evidence that the program has had the effect of establishing religion or that it has entangled the school district in religion …. The program properly accommodates religion without establishing it, in accordance with the First Amendment.” Moss v. Spartanburg County School District, 683 F.3d 599 (4th Cir. 2012).

Editor’s Note: The May/June 2013 edition of Church Law & Tax Report includes “Churches and Released Time Programs for Public Schools,” an article that goes deeper into the steps for developing and maintaining a constitutionally sound effort.

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