The tenth circuit's judgment upheld an injunction against the policy
as it was written, and in doing so accurately cited Allen. The
panel's later statement of what the school district might do on remand
purported to decide an issue not before it (the constitutionality of a
program the school had never adopted), and to that extent, would seem
to be dictum, not binding in the tenth circuit and, for the reasons
already discussed, not even persuasive in the fourth circuit. As a
close friend who served for many years on a court of appeals regularly
reminded his colleagues the more we write beyond what is necessary to
decide a case, the more from which we will later have to recede.
I should qualify what I wrote in this respect, though -- I'm not
entirely confident that the Court as currently comprised would find
teaching religious doctrine in a public school elective course to be
unconstitutional, though I hope that for Chief Justice Roberts, that
would be a bridge too far.
Mike
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting "Scarberry, Mark" <mark.scarbe...@pepperdine.edu>:
Mike Masinter suggested that the Fourth Circuit in Moss was mistaken
in relying on its prior decision in Lanner v. Wimmer. Mike put it
this way:
"Lanner affirmed the injunction insofar as it forbade academic
credit for elective courses, leaving the school district free on
remand to adopt religiously neutral criteria that focus on whether a
release time course covers a subject for which credit could be
granted. Although Lanner doesn't put release time credit off
limits simply because a release time course has religious content,
it reaffirms Allen's rule that, religious content aside, the subject
covered be one for which a public school can grant academic credit."
I have to disagree with his reading of Lanner (and of Allen). The
court in Lanner did not require that "the subject covered be one for
which a public school can grant academic credit."
Lanner allowed release time religious instruction to be counted as
custodial time credit (that is, to be counted as part of the number
of hours each day that the student was to be in class under
compulsory attendance laws), and to be counted as eligibility credit
(that is, the number of hours of classes per day that the student
had to be enrolled in to be eligible for sports teams and other
extra-curricular activities).
The court would have allowed release time religious instruction to
be counted as academic elective credit (that is, to count toward the
number of elective units needed for graduation), except for an
entanglement problem. Under the state education department's policy,
schools were not to give academic elective credit for courses
"devoted mainly to denominational instruction." The court held that
the Establishment Clause did not permit the school to determine
whether a course was "mainly devoted to denominational instruction,"
because that would create an impermissible entanglement. Contrary
to Mike's reading of the case, the court did not require that the
course be one for which a public school could grant academic credit.
The court in Lanner stated:
"If the school officials desire to recognize released-time classes
generally as satisfying some elective hours, they are at liberty to
do so if their policy is neutrally stated and administered.
Recognizing attendance at church-sponsored released-time courses as
satisfying graduation requirements advances religion no more than
recognizing attendance at released-time courses or full-time
church-sponsored schools as satisfying state compulsory attendance
laws. If the extent of state supervision is only to insure, just as
is permitted in the case of church-sponsored full-time private
schools, that certain courses are taught for the requisite hours and
that teachers meet minimum qualification standards, nothing in
either the establishment or free exercise clauses would prohibit
recognizing all released-time classes or none, whether religious in
content or not, in satisfaction of graduation requirements. It is
when, as here, the program is structured in such a way as to require
state officials to monitor and judge what is religious and what is
not religious in a private religious institution that the
entanglement exceeds permissible accommodation and begins to offend
the establishment clause."
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry,
Mark
Sent: Saturday, June 30, 2012 10:00 AM
To: Law & Religion issues for Law Academics
Subject: RE: Providing public school credits for release-time
religious classes
Setting aside the "Oh, sure," for whatever meaning it may have, the
same issues are raised by Zorach. If the school district may release
students for religious instruction as an accommodation, must it
also release students for Pilates (note the spelling and
capitalization) classes, pottery classes, etc.? If a student gets
release time for a religious class, or credit for a religious
class, then the student should also get release time, or credit,
for a philosophy or history of thought or atheism or secular
humanist class. I'm not sure how broadly the net must be cast as a
matter of constitutional law, but in each instance that question
must be addressed.
By the way, what makes an outside pottery class any less valuable
than an inside pottery class? I have a very ugly coffee mug that I
made in a public school 7th grade art class. I doubt that the inside
class did any more for my nonexistent artistic skills in
furtherance of the school district's "mission" than an outside
class would have.
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu]<mailto:[mailto:religionlaw-boun...@lists.ucla.edu]> On Behalf Of Marty
Lederman
Sent: Saturday, June 30, 2012 9:26 AM
To: Law & Religion issues for Law Academics
Subject: Re: Providing public school credits for release-time
religious classes
Oh, sure. If a school counts "credits" for graduation purposes
based on "total hours spent in any school" -- such that it gives
credit for the student's outside courses in pottery, Pilades,
drivers' education, SAT test-taking, etc. -- then of course it
should not, and need not, discriminate against hours spent in
religious courses. But no school does any such thing. Instead, the
credits presumably must be for classes in service of the school
system's pedagogic mission.
On Sat, Jun 30, 2012 at 12:12 PM, Scarberry, Mark
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>>
wrote:
I'm having trouble seeing just what the awarding of credit means
here and how it's problematic that a public school gives students
"credit" for time sitting in a different classroom. There is no
constitutional obligation on a public school to provide any
particular level or amount or quality of instruction. The "awarding"
of a high school diploma is not a conferring of a public right or
license or anything of the sort.
I believe that religious schools include religion classes in their
curriculum as part of the number of hours of instruction required
for graduation under their accrediting bodies' standards and
presumably under whatever Education Code may apply. If that practice
sufficiently meets societal needs, then I don't understand why (as
a matter of constitutional law) the public schools should have to
drag in students to sit for additional public school hours when the
students have a release time religious educational experience.
Consider this hypo: A public school district has relatively few
specified high school graduation requirements (only two years of
English, two years of math, etc.), but it does require that students
be in school from 8am to 3pm. The school district sets up a release
time program for religious instruction from 2-3pm. Must the school
district now require students who are in the release time program to
return to the public school and sit through a study hall period (or
other class) for an additional hour, so that they have seven hours
on the public school campus? If not, then the release time students
are in effect being given "credit" for their release time
educational experience.
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
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