*1 c Ill Conclusion New claims asserted after the jurisdictional plea that the has We conclude PUC exclusive claims, jurisdiction over the core and the After trial court denied denying trial court abused its discretion jurisdictional plea, plaintiffs SWBT’s filed jurisdictional plea. Accordingly, SWBT’s petitions asserting several amended new conditionally grant we the writ of manda- claims for breach of contract and violations the trial mus as those claims and direct of the Texas Deceptive Trade Practices- (1) January court to vacate its Act, Consumer Protection some of which dismiss; denying order SWBT’s motion to TUSF, pertain not to the but to SWBT’s (2) the core dismiss claims for lack charges. “Touch-tone” plea SWBT’s subject jurisdiction; matter con- jurisdiction was limited to the core proceedings duct further consistent with claims, request and its for mandamus re Tex.R.App. opinion. this P. In re 52.8(c); lief asks that we order the trial court to Co., E.I. DuPont de & Nemours dismiss pending “those claims at the time (Tex.2004). S.W.3d are confi- We trial [the court] denied Relator’s Plea to promptly comply, dent the trial court will the Jurisdiction.” SWBT asserts that our if writ will issue it does not. decision on the “may prove core claims
helpful to both the trial court participate and the Justice did not WILLETT litigants in decision. resolving jurisdiction over the
newly [claims], added future agree.
claims as well.” We SWBT also
asks that order stay we the trial court to
all claims not addressed plea SWBT’s jurisdiction
to the pending the PUC’s de claims,
termination of the core or that we direct the trial court to vacate its order MINISTRIES, INC., HEB Southern denying plea and conduct further pro Institute, Hispanic Bible Bible ceedings consistent opinion. with this Al Institute, Petitioners, though may abatement appropri well be ate, we believe the latter course is the prudent. more yet SWBT has filed a HIGHER TEXAS EDUCATION COOR-
jurisdictional plea claims, as to the new DINATING BOARD and Commissioner parties and the pre have briefed or Raymund Paredes, Respondents. sented those issues to the trial court. See No. 03-0995. Perritt, (Tex. In re 992 S.W.2d 1999). Should file plea SWBT such a as to Supreme Court of Texas. claims,
the new trial court consid Argued Jan. er it opinion with the benefit of this Aug. Decided our recent decision in In re Sw. Bell Tel.
Co., L.P.,
(Tex.2007) (hold
ing court abused its discretion in
refusing to abate claims within the PUC’s jurisdiction).
primary *3 Hall, Cokinos, Boyd
Trevor Bosien & Young, Arlington, for amicus curiae David Barton. Hall, Boyd Cokinos,
Trevor Bosien & Young, Arlington, for amicus curiae for Wallbuilders. Austin, Hayes,
Patricia Valdreace Independent Colleges amicus curiae Texas, Universities of Inc. Parker,
Allan E. *4 Texas Justice Founda- tion, Antonio, San for amicus curiae David Wallbuilders, Barton and Indepenent Baptist College and International Bible Center. Dallas, Johnson,
James J. S. for amicus curiae Texas Fellowship Christian Col- lege Professors. Shelby J. Sharpe, Sharpe Tillman, & P.C., Worth, Jr., Fort A. Raul Gonzalez Justice HECHT announced Gonzalez, Law Office of A. Raul Amalia judgment of the and delivered the Court Mendoza, Rodriguez County Travis Dis- opinion for the to Part respect Court with Clerk, Austin, Shackelford, trict Kelly J. I, JEFFERSON, in which Chief Justice III, Liberty Hiram S. Sasser Legal Insti- O’NEILL, Justice Justice tute, Plano, for Petitioner. WAINWRIGHT, BRISTER, Justice MEDINA, GREEN, Justice Justice and Sarwal, Weil,
Melanie Plowman Goth- Justice joined, JOHNSON and with Manges LLP, Abbott, shal & Greg Barry III-B, respect to Part in which Chief McBee, Ross Attorney Office of the Gener- JEFFERSON, O’NEILL, Justice Justice al, Jeffrey Boyd, S. Thompson Knight & BRISTER, MEDINA, Justice Justice LLP, Rose, Jeffrey Morales, L. Dan Toni Justice joined, opinion GREEN and an Hunter, Becker, P.C., Matula, Gray & Paul respect II, III-A, C, to Parts Gen., Burbach, Atty. Asst. D. Edward Of- III— O’NEILL, in which Justice Justice General, fice Attorney Rafael Ed- BRISTER, joined. and Justice MEDINA Cruz, Attorney Texas, ward General of Warr, Amy Alexander Dubose Jones & requires private The State of Texas Townsend, LLP, Austin, Andy Taylor, post-secondary prescribed school to meet Associates, Andy Taylor P.C., Hous- standards it call itself a “semi- before ton, Respondent. nary” or like “associ- “degree”, use words ate”, “bachelor”, “master”, and “doctor”— Douglas Laycock, University of Texas or their attain- equivalents recognize —to Law, School of Hayes, Patricia Valdreace ment in religious training. education and Austin, must decide requirement We whether this Barrow, Whitaker, Kathleen Ann Reilly impermissibly religious free- upon intrudes Chalk, L.L.P., & Sawyer, protected Swindle Fort dom by the States and United Worth, for amicus curiae Texas Southwestern Constitutions. hold it does and We Baptist Theological Seminary. therefore judgment reverse the appeals1 court of terminology naming and remand the case to demic or otherwise the trial court for further proceedings. institutions, designating educational advertising, representation solicitation or
I agents, institutions or their preservation and the maintenance and A essential academic records.” The State of goes great Texas purpose, subchapter To achieve this G of lengths to ban “diploma mills” —what “private post-secondary the Act denies a Webster’s Dictionary defines as “institu- educational institution”5 use of certain ter- higher operating tion[s] education with- minology graduate common to education supervision out of a professional state or authority unless has a certificate of agency granting diplomas which are Higher Coordinating Texas Education either fraudulent or because of the lack of Board.6 Section 61.313 restricts what an proper standards High- worthless”.2 The originally institution can call itself. As er Coordinating Education Act of enacted in it restricted use of chapter codified as 61 of the Texas Edu- “college” “university”,7 the terms Code,3 cation states that “the policy and its reach was broadened in 1997 and now purpose of the State of Texas [are] *5 in part: states prevent deception public of the resulting (a) conferring the and use of fraudulent Unless the institution has been is-
or college substandard university and sued a certificate of authority de- under this grees regulate [and] the use of aca- subchapter, person may a not: 2003). 1. 61.021(a) (“The 114 S.W.3d (Tex.App.-Austin Higher § 6. Id. Texas Edu- Coordinating agency cation Board is an the of 2. Webster’s Third New International Dictio- -"); 61.002(a) ("[The § state id. Board] nary provide[s] leadership and coordination for the institutions, higher system, Texas education 3. Tex 61.001-.9732. Educ.Code§§ boards, governing and to the end that § Id. 61.301. may State of Texas achieve excellence for college youth through education of its 61.302(2) (“ § Id. postsecondary ‘Private and efficient effective utilization and concen- educational institution' or ‘institution’ means tration of all available elim- resources and the (A) an educational institution which: is not costly duplication program ination of offer- higher an institution of education as defined faculties, ings, physical plants.”); and id. by [generally, Section public 61.003 a 61.022(a) (“The § board shall consist of nine school]; (B) incorporated under the laws of appointed by governor members so as to state, place this a maintains of business provide representation state, from all of areas representative this state, has a present in this state; stag- state.... of the Members board serve or solicits business in this terms.”). (C) gered six-year or furnishes offers to furnish courses of media, person, by instruction electronic or by correspondence leading degree to a or R.S., May Leg., 7. Act of 64th ch. providing alleged applicable credits to be to a § 1975 Tex. Gen. Laws 61.003(8) (" degree.”); § id. ‘Institution of (“No person may ‘college’ use the term or higher any public education’ means technical ‘university’ in the official name or title of a institute, public junior college, public senior private higher institution of education estab- unit, college university, or medical or dental subchap- lished after the effective date of this public college, agency higher state or other subject provisions ter and to its unless the section.”). education as defined in this An institution has been issued a certificate of schools, exception non-profit for certain id. authority grant degree degrees.”). a or 61.313(d), "grandfather” exception, and a 61.313(e)-(g), §id. are not relevant here. (1) term “college,” empowered use the “universi- board. The board is medicine,” manner, ty,” “seminary,” regulate specify “school of condi- tion, school,” an language by cen- used institution “medical “health science law,” ter,” school,” or or thereof in person agents making “school of or “law or person center” in the or title known institution “law official name authority holds certificate of and the nonexempt private postsecondary of a interpretation significance such institution; or certificate.9 (2) an using describe institution 61.302(1)
term listed in or a term Subdivision “degree” Current section defines having meaning.8 a similar expansively: or “Degree” designa- means title designations
Section 61.304 restricts the tion, mark, abbreviation, appellation, or educational attainment an institution words, including series letters or as- use. case when events this sociate, bachelor’s, master’s, doctor’s, occurred, 61.304 section stated: equivalents, signifies, their A person may grant award to, purports generally or is taken to degree private postsec- on behalf of a signify satisfactory completion the re- ondary educational institution unless part program of all or of a quirements institution has been issued a certificate associate, leading bachelor’s, study authority grant degree master’s, degree equiv- or its doctor’s in accordance provisions board alent.10 subchapter. person may this A explains: As section 61.301 represent granted that credits earned or person applica- or institution are degrees equivalent indica- Because *6 degree ble for credit a to be are toward of attainment used tors granted by person some other or institu- by employers judging training in the of except tion under in a prospective by public conditions and and employees, in specified approved by professional groups manner determin- private and 61.313(a). formerly § § A See also id. 61.304. Tex. Educ.Code Tex. Educ.Code 61.313(c) (“A person § the term grant not use or amendment added “or offer to award ‘college,’ ‘university,’ ‘seminary,’ sentence, ‘school of assigned degree” a first these medicine,’ school,’ ‘medical 'health science sentences, respectively, to three subsections center,' law,’ school,’ ‘school of Taw or Taw (a) (c), through subpara- new and added center' in the official name or title of an 25, 2005, (d)-(f). graphs May 79th Act of establishment.”) training educational or and R.S., Leg., § ch. 2005 Tex. Gen. (d) ("This apply an section does not institu- 3499, 3500. Laws higher private tion of education a institu- or higher by tion of education as defined Section 61.302(1); see also 19 § 10. Tex. EducCode 61.003.”); 61.003(8), (15)("Private §§ or id. 7.3(7) (2007) (“Degree— § Admin. Code Tex. independent higher institution education” of abbreviation, mark, Any designation, title or one, alia, organized non-profits, is inter words, or in- appellation, or of letters series Const, tax-exempt § 2 under Tex. art. VIII 'bachelor’s', ‘master's’; ‘associate’, cluding statute, by and certain and federal accredited foreign and equivalents ‘doctor's’ and their (" entities), 61.302(9) § ‘Educational or train- signify, cognates, signify, purport to or which ing enterprise establishment' an offer- means signify satisfactory generally taken to instruction, education, ing a course of completion requirements part of all or of rep- training that the establishment does not generally study is program a degree.”). applicable resent to be to a regarded accepted and as an academic de- 25, 1993, R.S., accrediting agencies program by May Leg., gree-level ch. Act of 73rd Board.”). by recognized § Tex. Gen. Laws operation. Some are ing qualifications for admission to and of an institution’s by practice, gen- continuance of like these: quite explicit, public assessing competence eral in (cid:127) in an faculty teaching member “Each in persons engaged range a wide associate or baccalaureate academic necessary general activities to the wel- degree program shall have level fare, by regulation law of the evidences an insti- degree a master’s from least college university educational at- by recognized tution accredited public tainment interest. To accrediting agen- agency regional or a the same end the protection legiti- cy graduate at least 18 semester holding mate institutions and of those being discipline credit hours from them degrees public is also Furthermore, 25% of taught. at least interest.11 course in an academic associate work authority,12 To obtain a certificate of major shall be or baccalaureate level satisfy Coordinating institution must faculty holding taught by members that it meets standards the Board doctorates, degrees, or other terminal adopted.13 present.14 has There are 21 at discipline being taught in the substantively the standards were by recog- accredited institutions According similar but numbered 24.15 regional accrediting agency nized Board, “represent gener- standards degree level agency.... Graduate ally accepted administrative and academic taught by faculty programs shall practices principles of accredited insti- doctorates, or other terminal holding higher tutions of education Texas” and degrees, discipline being taught in the “are generally by regional set forth by from institutions accredited a rec- specialized accrediting bodies.”16 The detailed, ognized agency regional or a accredit- standards are lengthy, rigorous, comprehensive, covering every aspect ing agency.”17 "generally set forth the Com- standards § 11. Tex. Educ.Code 61.301. Colleges, mission on Southern Association (2007) (“Cer- 12. 7.3(4) Admin. Tex. Code Colleges specialized and Schools and ac- authority approval tificate of Board's —The crediting bodies and several academic and *7 education, (other higher institutions of than societies...."). professional institutions) exempt operations with in the Texas, degrees state of to confer or courses (1998); 5.214(a)(5) § 17. 19 Tex. Admin. Code degrees, applicable to or to solicit students for 7.7(9)(A), (B) § & accord 19 Tex. Admin. Code degrees enrollment institutions that confer (2007). (E) In a caveat was added to applicable degrees."). or courses requirements persons excep- with these for 7.7(9)(F) ("With § experience. Id. tional 61.306(a) ("The § board 13. Tex. Educ.Code majority gov- approval of a of the institution’s may authority grant issue a certificate of board, erning exceptional an individual with degree degrees or and to enroll students for appointment, experience in the field of which may applicable courses be toward a experi- work degree include direct and relevant applicant if it that the finds meets certification, ence, by professional licensure and standards for certifi- established board cation.”). awards, and continuous documented honors teaching, excellence in or other demonstrated 7.7(1)-(21) (2007). § 14. Tex Admin. Code achievements, may competencies serve as and degree faculty creden- member without 5.214(a)(l)-(24) § 15. 19 Tex Admin. Code specified appointments tials above. Such (1998), adopted Reg. 22 Tex. 11355- justification ap- limited and the for shall be 11357, (Nov. 21, 1997). pointment fully The Coordinat- documented. ing qualifications of evaluate the shall (2007); § 19 Tex. Admin. 19 Tex. Code 7.7 faculty providing in- complement of the full 5.214(a) (referring § Admin. Code (cid:127) (cid:127) character, education, “Each associate or baccalaureate de- “The experi- and
gree program general shall contain a in higher ence education of the faculty consisting education of component shall be such as may reasonably en- least 25% of the total hours offered sure that the students will receive an program. for the This component education consistent the objec- with shall be drawn from each of the fol- of the or program tives course lowing areas: Humanities and Fine study.”21 Arts, Sciences, Social and Behavioral (cid:127) “There shall be a sufficient number of and Natural Sciences and Mathemat- teaching faculty full-time resident and ics.” continuity accessible to ensure and Other standards leave much the Coordi- stability program, of the education ad-
nating Board’s discretion to determine equate educational association be- compliance: faculty among tween students and and (cid:127) character, education, “The experi- members, the faculty adequate higher governing ence in education of opportunity proper preparation members, administrators, board su- instruction professional growth by counselors, pervisors, agents, and oth- faculty members.”22 er institutional be officers shall such (cid:127) content, quality, sequence “The may reasonably ensure that curriculum, course, each program or students will receive education consis- instruction, training, study shall objectives tent the course appropriate purpose to the program study.” institution and shall be such that the (cid:127) “There shall be sufficient distinction may reasonably institution and ade- among the personnel roles and quately objectives achieve the stated governing institution, board of the program.”23 course or administration, faculty to ensure (cid:127) (cid:127) adequate their “The appropriate separation and inde- institution shall have pendence.” space, equipment, instructional [and] (1998); 5.214(a)(8) struction at the institution to determine that 19 Tex. § Admin. Code appointments justified up 7.7(13)(A)-(B) such and make accord § Tex. Admin. Code percentage faculty a small as a (2007). whole.”), adopted Reg. (May 30 Tex. 2005). requirement an additional 5.214(a)(1) (1998); 19. 19 Tex. Admin. Code § 7.7(2)(B) (“The § was added. Id. chief aca- 7.7(2) accord 19 Tex. Admin Code demic an earned officer shall hold doctorate awarded accredited an institution *8 5.214(a)(3) (1998); 20. 19 Tex. Admin Code § agency recognized by the Board or from a 7.7(4) (2007). accord 19 Tex. Admin. Code § foreign equiva- institution to be demonstrated institution, lent to an accredited and shall 5.214(a)(5) (1998); 21. 19 Tex. Admin Code § aptitude experi- demonstrate sound for and (2007). 7.7(9) accord 19 Tex. Admin. Code § development ence with curriculum and as- sessment; pro- and accreditation standards 5.214(a)(6) (1998); regulations; 22. 19 Tex. Admin Code as well all relevant cesses as state § (2007). 7.7(10) leadership development faculty, in- and of accord 19 Tex. Admin. Code § cluding promotion scholarship, re- search, service, freedom and re- academic 5.214(a)(7) (1998); 23. 19 Tex. Admin Code § (where sponsibility, applicable); and tenure 7.7(12)(A) accord 19 Tex. Admin. Code § success.”), promotion and the of student 11, 2006). (Aug. adopted Reg. 31 Tex. only eight years, by which time the institu- provide good materials to education of tion full accreditation.29 must obtain quality.”24 exempt subchap- An institution is (cid:127) “The adequate institution shall have a fully “recog ter G if it is accredited financial and financial sta resources agency5’ designated by nized accrediting bility to education of provide good Board.30 In Coordinating quality and to be able to fulfill its only three accredit designated Board had commitments to students.”25 agencies, specifically which were ing two of (cid:127) oriented institutions.31 toward “The adopt institution shall and dis- added, then, been Since four others have tribute all faculty to members a Although none a focus.32 no statement of academic freedom assur- recognized accrediting agency’s standards ing teaching, research, freedom in and record, for included in the Board rec publication.”26 ognition, accrediting agency’s standards authority A certificate of is valid for two comprehensive “must be at and least years,27 and an must apply institution rigorous as Board’s standards [the days renewal 180 before certificate authority] rigorous certificate of and be as expires.28 ly exempt A can be applied.”33 may, certificate renewed for An institution 5.214(a)(l 1) (1998); § designated by 24. pur- rule of the board for the Tex. Admin Code 7.7(16) (2007). poses § accord 19 Tex. subchapter.”). of this Code Admin. (1998), § adopted 31. 19 5.211 Tex. Admin. Code 5.214(a)(12) (1998); § Tex. Admin Code (Nov. 21, 1997) Reg. (“Recog- 22 Tex. 7.7(5) (2007). § accord 19 Tex. Code Admin. agency accrediting nized Commission —The Colleges, Colleges on Southern Association of 5.214(a)(14) (1998); § 26. 19 Tex Admin. Code Schools; and Bi- American Association of 7.7(11) (2007). § accord 19 Tex Admin. Code Colleges; Theologi- ble Association or the cal Schools in the United States and Cana- 61.306(b) ("A § 27. Tex. Educ.Code certificate da.”). authority grant degree degrees period years valid for a of two from the date 7.4(a)(1) (2007) ("For § 32. 19 Tex Admin. Code issuance.”). purposes exemption, the Board cur- rently recognizes following accrediting 61.308(a) ("A § private Id. postsecondary agencies: Higher on Commission Edu- institution desires to renew cation, Colleges Association of Middle States authority apply certificate of shall to the Schools; and the Commission on Institutions days prior board at expiration least 180 to the Education, Higher England New Associa- certificate.”) of the current Colleges; tion of Schools and the Commission Education, Higher on Institutions of North 5.215(d)(3) (1998) § 29. 19 Tex. Admin. Code Schools; Colleges Central Association ("An granted institution consecutive Colleges Northwest Commission authority longer certificates of for no than Universities, Colleges, the Commission on cause, eight years. Absent sufficient at the Schools; Colleges Southern Association eight years, end of the the institution must Accrediting Community Commission for by recognized have been accredited accred- Accrediting Colleges and Junior Commis- iting agency.”); 19 Tex accord Universities, Admin. Code Colleges sion for Senior 7.6(c)(3) (2007). Colleges; Western of Schools and Association Higher the Association of Biblical Education *9 61.303(a) ("The provi- § 30. (undergraduate only); and the Association of Tex Educ.Code subchapter any way sions of this do not in Theological Schools in the United States and apply fully to an is institution which accredit- Canada.”). by recognized accrediting agency.”); ed a id. 61.302(8) (" 5.213(i)(2) (1998); ‘Recognized accrediting § agen- § 33. Tex. Admin. Code 7.5(f)(2) (2007). cy' organization § means an association or accord Tex so Admin. Code should, common- attainments words according to the Board obtain students’ with authorization,34 a certificate of is not purposes by such institu- ly used for those to be confused a certificate of authorit with A is a A misdemean- tions. violation Class y.35 or,36 by may investigated enjoined General,37 Attorney punishable by is a sum, exceptions, a none few $1,000 per day38 penalty civil case, subchapter material to this G of the $1,000-5,000 penalty per administrative requires private post-secondary Act that a imposed by offense39 the Commissioner Board-approved institution either ac- have Education, Higher the Board’s executive satisfy Board-adopted or creditation stan- false, officer,40 a or de- misleading, dards before it can describe itself and its and is ("A 61.303(c) ("An 61.319(a) exempt person § § who violates 34. Tex. Educ.Code 38. Id. subchapter adopted may this or a rule under this person institution or be issued a certifí- penalty subchapter is liable for a civil in addi- grant degrees.”); cate of authorization to ("A 7.4(d) (2007) any injunctive any relief or other rem- § tion to new insti- Tex Admin. Code $1,000 may edy. penalty A not exceed a may exempt civil presume tution status and violation.”). day for each degrees leading offer to award or courses degrees applied for until it has and been granted by a of authorization certificate 61.316(a) ("If person § violates a Id. a 39. Commissioner.”); 7.3(5) ("Certificate §id. subchapter, provision the commission- of this acknowledgment authorization —The Board's may penalty er assess an administrative qualified exemp- that an for an institution by against person provided this section herein.”). regulations tion from the 61.316(b) ....”); ("Any person § who id. degree a on behalf confers or offers to confer 23, 2003) Reg. (May (explain- private postsecondary 35. 28 Tex. educational institu- of a ing regulations being subchap- subject provisions that the were amended of this tion to the authority’ "add of ‘certificate of issued a certificate of definitions ter which has not been represents explain authority grant degrees who and of 'certificate of authorization’ to or by person types granted the different of certificates available to that credits earned or institutions"). for credit toward applicable or institution are person degree granted another or to be in a except conditions and 61.304(d) ("A institution under person § 36. Tex. Educ.Code specified approved the board (1) manner grants person: commits an if the offense penalty of shall be assessed an administrative degree grant or awards a or offers to $5,000. $1,000 than not less than or more degree award a in violation of this section authority degree conferred without con- _”); 61.304(e) ("An Each § id. offense under 61.316(c) offense.”); § separate id. (d) stitutes a misdemeanor.”); A Subsection is a Class private post- ("Any person who establishes a 61.313(h) ("A person § an offense id. commits secondary institution that is (1) person: if the uses a term violation of exempt subchapter and uses a term ....”); 61.313(i) (“An from this § this id. of- section protected subchapter in the official (h) under this is a Class A misde- fense under Subsection having without first meanor.”); ("An of the institution name § PENAL CODE 12.21 TEX. authority a certificate of been issued adjudged guilty a Class A misde- individual any per- subchapter or this (1) institution under punished by: meanor shall be a fine not to train- an educational or $4,000; (2) who establishes son jail confinement in for a exceed protected ing and uses a term establishment year; term not to exceed one both such name or subchapter in the official confinement."). under this fíne and assessed an the establishment shall be title of $1,000 penalty of not less than administrative 61.318(a) ("The § commis- Educ.Code Tex. $3,000.”). than or more concerning report information sioner possible subchapter violation of this to the 61.028(a) ("The appoint attorney general board shall attorney general. The shall Id. education, higher who shall investigations necessary and shall commissioner make the per- supervise the board's staff select and bring enjoin violation of this sub- suit by the delegated to him other duties chapter.”). form *10 upon our focus is ceptive practice act or actionable under the At TYNDALE moti- Deceptive you professional Texas Trade minister or Practices-Consum- —the a er Protection Act.41 to make layman who wishes vated You in our world. difference Christ B part of the TYN- important are the most is to meet equation. job DALE Our parties stipulated have to all the your you half-way needs —to meet facts. in help you quality Bible courses Ministries, Inc., HEB Petitioner a your ministry endeavor. Worth,42 school, operates church in Fort a Tyndale Theological Seminary and Bible lengthy catalog also contained a Institute, early which was founded in the setting Tyn- out “Doctrinal Statement” prepa- 1990s to offer a biblical education in positions on issues of faith.43 The dale’s in ministry ration for churches and mis- courses, catalog listed 172 By sions. campus consisted of a religious subjects. in Of the other were library, classrooms, four or five adminis- ten, in general three were education— offices, bookstore, trative a small and a English Composition”, “Basic Grammar & computer department, and its enrollment Basics”, “Read, Study Research & students, 300-350 was with over three- History” “Ancient World seven were —and fourths in correspondence Tyn- courses. in and use of the typing, processing, word “private dale is a postsecondary education- Internet, by the “Department offered al institution” as defined by subchapter G. Theological and Biblical Research”. The
Tyndale’s catalog 1997-1998 course stat- all in reli- catalog “diplomas”, offered ed: gious subjects.44 sion”, board. The Hope”, commissioner shall serve at the "The “The Tribula- Blessed board.”); tion”, Christ”, pleasure of the Coming "The "The Second Admin. Tex. Code 7.16(a) (2007) ("If State", § person Issues”, or institution Eternal "Current and “Wom- provision subchapter, violates of this Ministry”. en and may Commissioner assess an administrative against penalty person or institution as 44.These were: “Certificate of Biblical Stud- section.”); provided in this 19 Tex Admin. ies”; Studies"; "Diploma of Basic Biblical 5.221(a) (1998) ("If § person violates a Code Diploma "Associate Level of Biblical Stud- provision subchapter, of this the commission- ies”; "Diploma of Advanced Biblical Stud- er penalty assess an administrative ies”; Studies”; Theological "Diploma of law.”). against person provided by Studies”; "Diploma of Christian “Graduate “Systematic Theology” Diploma” in and in 61.320(a) ("A person 41. Tex. Educ.Code who “Ministry Counseling”; and Christian "Mas- false, subchapter violates this commits a mis- Diploma” ter of Arts Level in "General Bibli- leading, deceptive practice act or within Studies”, "Counseling”, "Apologet- in cal 17.46, meaning of Section Business & ics”, "Missions”; "Languages”, and in Code."). Commerce Diploma" Level "Doctor Ministries and in "Counsel- "General Biblical Studies" 42. "HEB” refers to the Hurst-Euless-Bedford ing”; Diploma”; "Master of Ministries Level area between Fort Worth and Dallas. Systematic Theology Diplo- "Master of Level ma”; Theology Diploma"; "Doctor of Level captioned Scriptures”, 43. These were "The Godhead”, Theology Diploma in Pro- "Angels, “Doctor of Level "The Fallen Unfal- Studies”; len”, "Man, Fallen", Diploma phetic and "Ph.D. Level Created and "God's counseling pro- Purpose”, Prophetic Studies”. The Eternal "The First Advent of Christ”, Christ", grams expressly religious Only Through were and not secu- “Salvation Salvation”, lar, language programs "The Extent of were for bib- "Eternal Securi- ty", Holy Spirit”, study. “The "The Great Commis- lical *11 catalog “diploma” strong theology, no Tyndale’s offered solid Bible stance — courses, practical language exegesis, any subject in etc. “degree” secular and no kind, it any programs characterized What validates TYNDALE? TYN- study required diploma equivalent for a as by DALE it believes affirmed programs study required degree for a Advisors, Governors, Board of Board of example, at the same For the cata- level. and, attending the students the world- log “Diploma Theological referred to its Of Faculty give class Guest who our stu- program equiva- Studies” as a “bachelor dents the best of academics and the program” equivalent lent and “bachelor greatest training in spiritual mes- studies”, course of “Master of Arts sage Scriptures. again, many But Diploma” “Counseling” as a “Mas- Level AF- schools seek RECOGNITION and Program”.45 ters Level state, FIRMATION from the from secu- professional groups lar associations or catalog The course did not state that really meddling no have business Tyndale’s diplomas equivalent were biblical matters. it college degrees, but neither did state not; it on they approach many were was silent seminaries and antiquated. Bible schools is subject. catalog Tyndale stated that obsolete be, They they are still call trying Baptist Theological and Louisiana Semi- it, mainly, But “traditional” schools. nary “going parallel were forward with they simply try keep up with the programs prophetic and ex- [in studies] look and act They attempt Joneses. change of credits institu- between two reality, like But secular universities. tions”, say but did not otherwise TYNDALE, and other a school like Tyndale applied academic could be credits convictions, are the schools our with earning degrees. toward traditional, other ones that are not the Tyndale had never been accred- way around. agency recognized ited Coor- 1960s, For in the most example, dinating Board and had never obtained a accredited, Christian schools were authority certifícate of from the Board. They nor did the best want to be. were or Tyndale sought never accreditation by being serving satisfied the Lord authority certifícate of for what de- complete their frame- whole within “doctrinal reasons”. In its scribes as well, calling. As a student work catalog, Tyndale course de- 1997-1998 at these get could the best education position scribed its on accreditation as fol- had not been institutions and know he lows: But in the culture. compromised with Many shifting seminaries are on 1970s, ap- state on for push was They they impress feel must sands. want proval and accreditation. “We their intellec- world or the culture with approval. government state and federal Thus, spend- tualism. some schools to like us?” Did [sic] We want world ing large money appearance anything sums of of this have to do with teaching message of those focusing quality no on the sub- longer and are regulations. including describing ‘college-level,’ them as 45. This would violate current 7.14(a)(2) (“A person any protected academic term or at the level of Tex Admin. Code (Feb. 17, _”), adopted Reg. 1023 represent not ... that credits 31 Tex. institution nature, 2006). collegiate granted are earned or *12 It schools? did not! Tyndale Theological Seminary When one of the Worth, Fort Texas big seminaries became in accredited To it may Whom concern 1970s, almost faculty all of the older [recipient’s name] graduates testify all of the satisfactorily completed Has the course of school went down hill—not in a certain Theological by studies offered manner, quality secular in its mes- faculty of this institution and enti- sage and commitment to truth and the tled Gospel. following diploma: to the The aequus One of the largest Christian Universi- Master of Arts Diploma Level in said, ties America has “We will hereby by And the same is conferred become accredited!” today That school authority of the board is highly respected and other schools faculty by presi- as recommended graduates. want their Accreditation or dent.
lack of it has not anything had to do 26,1998 June quality with the school’s or mission. awards, conferring Tyndale these did Nevertheless, “degree”. not use the word At commencement exercises on June of Higher Commissioner Education 1998, Tyndale recognized graduates with Tyndale July sent a letter dated awards, listed in program with titles which stated: as follows: know, you As the Texas Education (cid:127) (Cert. “Certificate of Biblical Studies Code, G, Chapter Subchapter re- BS)” two;— quires an institution to a certificate have authority grant degrees, to (cid:127) credits “Diploma of Basic (Dip. Biblical Studies applicable degrees, specific or to use BBS)” three;— academic I terminology. have deter- (cid:127) (ABS)”— “Associate of Biblical Studies Tyndale mined that Theological Semi- one; nary & violating Biblical Institute is this (cid:127) “Diploma of Advanced Biblical Studies 61.316, statute. Section Under (Dip. ABS)” one; Commissioner must assess penalties for — penalties may violations. Those range (cid:127) “Bachelor Diploma Level Biblical $1,000 $3,000 from pro- for use of a (BBS)” two; Studies — tected term in the institution’s name and (cid:127) “Bachelor Diploma Theological Level $1,000 $5,000 awarding or (Dip. Th.S.)” six; Studies — offering degrees. Each degree award (cid:127) (DCS)”— “Diploma sepa- awarded offered constitutes a Christian Studies rate offense.
two; possess, From the evidence I we con- (cid:127) (MA)” nine; “Master of Arts — following: clude the (cid:127) (Th.M.) two; “Master of Theology — (cid:127) Tyndale pri- meets definition of a (cid:127) (D.Min)” one; “Doctor of Ministries — postsecondary vate institution Tex- 61.302(2); §in as as found (cid:127) Theology (Th.D)” two; “Doctor of — (cid:127) Tyndale was informed the law (cid:127) (Ph.D)” “Doctor of Philosophy —three. requires it must hold a certificate of copy The record contains a one of authority Coordinating from the It grant award certificates. read: Board to degrees, grant credits degrees, awarding applicable protected offering or use cease to award de- (3) terminology a letter from the Coor- cease grees; offering credit towards dinating (4) September dated degrees; your graduates, inform stu- 1991; dents, potential students letter (cid:127) 26, .1998, Tyndale On or about June you degree granting have au- no undergraduate
awarded six certifi- full thority; offer letter re- *13 (consisting alleged cates of courses graduates to all and students. funds applicable be one associ- degrees), informing your of The content the letter degree, eight degrees, ate bachelor’s your and the offer students of status of (ac- diplomas of two Christian Studies be to the Coor- refunds must submitted cepted equivalent as a baccalaureate dinating approval prior for pro- for admission to your master’s us Failure to contact with distribution. grams), degrees, eleven and master’s actions your plans your to correct will degrees six a of 34 doctoral for total in this matter to referring result our degrees; and for Attorney of the General in- Office (cid:127) Tyndale using protected term any relief junctive other allowed “seminary” in its name. law. Therefore, I assessing am an adminis- $173,000, penalty consisting
trative of C 34 violations of granting degree a with- deci- did not the Board’s Tyndale appeal $5,000 authority out at each and one Instead, sued the sion.46 HEB Ministries using protected violation term Commissioner, Board, $3,000. Coordinating declaratory Attorney General for (20) twenty days You have from the sections 61.30447 judgment receipt date this letter to either 61.313(a), Tyn- like applied as to a school penalty pay appeal or the deci- dale, Clause and the Establishment violate sion. ... First Exercise of the Amend- Free Clause Also, must you immediately cease as ment to the United States Constitution in your actions violation state law. I, the Texas as article 6 of well section us twenty days You must contact within also HEB Ministries Constitution.48 receipt your of the of this letter with attorney Coordinating The sought fees. plans your to correct actions. At mini- and the counter- fol- Board plans mum those include the Commissioner must (1) previously for as- lowing: you using must cease claimed collection of $173,000 administrative penalty, an “seminary,” protected term other sessed term, institution; Ministries prohibiting in the name of HEB your injunction ("An 61.316(f) Rights’ everything is ex- 'Bill of 46. See Tex. Educ.Code institu- this may appeal penalty govern- powers tion administrative cepted general of the out inviolate, provided by Chapter manner Gov- ment, and shall forever remain Code.”). ernment thereto, following contrary or to the all laws void.”), provisions, shall be and that section What then now sec- was section 61.304 is Code violates of the Education 61.304 Texas 61.304(a)-(c). Supra tion note 9. guaranteed by process the Fourteenth due States Constitution Amendment to the United petition alleged The also that the statutes I, I, Texas Constitu- and article section Con- violate article section 29 of the Texas (“To material this against tion. None these claims is guard transgressions of stitution high powers delegated, appeal. herein we declare G, Subchapter engaging degrees, in the as defined conduct sanctioned, Tyndale’s attorney representing had been fees. degree applied toward credits would point, At some other institutions two institution, it obtained a at another until One, plaintiffs. as Southern
intervened authority certificate of from the Coordinat- Institute, post- Bible describes itself “a ing Board. secondary religious educational institution Dallas, neither pur- appeals Texas ... founded for the court of held that African- nor 61.313 violates the First pose preparing disadvantaged 61.304 I, ministry.” American men for the or article sections 6 and gospel Amendment Thus, other, Institute, it rein- Hispanic Bible states of the Texas Constitution. $3,000 post-secondary religious penalty that it is “a edu- stated the administrative Antonio, Texas”, against Tyndale’s cational institution in San HEB use Ministries *14 $170,000 offerings and that “seminary”, upheld “[t]he of this and ministry theology, pastoral granting are church and for de- penalty administrative ministry, general grees. and studies.” The rec- The court remanded the case for injunction ord contains no other information about entry permanent of a consistent the intervenors. opinion.51 with its summary
Both sides
for
judg-
granted
plaintiffs’ petition
moved
We
for
(in-
motion,
ment.
In
plaintiffs
Petitioners,
their
to whom
shall
review.52
we
intervenors)
cluding
argued,
Ministries”,
in addi-
“HEB
collectively
refer
allegations
tion to the
in HEB Ministries’
contend that the Establishment and Free
petition,
that sections 61.304 and 61.313
of the First Amendment
Exercise Clauses
also violate the
pro-
First Amendment’s Free
state constitutional
corresponding
Speech
I,
Clause49 and
preclude
requiring
article
section 8 of
the State from
visions
the Texas Constitution.50
post-secondary
religious
The defendants
school
awith
object
did not
specified
this additional claim and
mission to meet
standards
it in
response.
addressed
their
The trial
operation and curriculum before it can call
court held that
regulation
section 61.313’s
“seminary”
itself a
or use words like “as-
“seminary”
sociate”, “bachelor’s”, “master’s”,
of the word
violates the First
I,
Amendment and article
sections 6 and 8 “doctor’s” to mark
attainment
student
of the Texas Constitution.
training.
all other
education and
HEB
respects, the trial
granted summary
challenge
court
Ministries does
State’s
judgment for the
authority
impose
defendants.
It ordered
such standards on sec-
HEB
pay
$170,000,
Ministries to
State
ular institutions and on
institu-
penalty
for granting
offering
assessed
34 de-
tions
a secular education. Nor
grees,
plaintiffs
and ordered the
to pay does HEB Ministries contend that
$34,781
attorney
regulate
fees. The court also
cannot
use of the
“de-
State
word
enjoined HEB
awarding
gree”.
only
Ministries from
It contends
the State
("Congress
passed curtailing
liberty
speech
49. U.S.
amend.
Const,
I
shall
ever be
abridging
make no law ...
the freedom of
press_”).
or of the
speech....”).
2003).
(Tex.App.-Austin
S.W.3d
I,
(“Every person
50. Tex.
art.
shall
Const,
liberty
speak,
publish
write or
his
(Dec. 2004).
Sup.Ct.
52. 48 Tex.
J. 146
opinions
any subject, being responsible
privilege;
the abuse of that
and no law shall
deny
higher
cannot
the use of such
edu-
II
terminology
cation
schools that
The Establishment
prohibits any
Clause
Respondents,
do not meet its standards.
respecting an
“law
establishment of reli-
Coordinating
gion”.54
I,
Board and the
Correspondingly,
Commis-
article
section
6 of the Texas Constitution states that “no
sioner
(collectively
Coordinating
“the
preference
given
shall ever be
law to
Board”),53 insist that sections 61.304 and
any religious society”.55 We have referred
61.313(a)
constitutionally
are
sound be-
I,
provision
to this
and article
section as7
they
part
cause
of a neutral
law
equivalent
“Texas’
of the Establishment
purpose
generally
secular in
applica-
argue
parties
Clause.”56
do not
higher education,
ble to all institutions of
there is
application
difference
incidentally impacts
institu-
pro-
these federal and state constitutional
offering religious
tions
instruction. The
case,
visions to this
assume for
we will
Coordinating
argues
that use of the
present purposes
they
are coexten-
statutorily
unimportant
restricted words is
sive.57
to the
mission
a school like
Fundamentally,
‘establish
“[t]he
Tyndale
there are
when
other words it can
ment of
of the First
religion’ clause
use to describe itself and its students’ at-
Amendment
at least this: Neither a
means
tainment.
*15
can set
state nor the Federal Government
HEB Ministries also
contends
sec- up
pass
a church. Neither can
laws which
61.313(a)
tions 61.304 and
violate the Free
religion,
religions,
prefer
aid one
all
or
aid
Speech
of the
Clause
First Amendment
religion
one
over another.”58 Since
and corresponding
pro-
state constitutional
government
cannot determine what
separate opinions
visions. The
find it nec-
be,
church
it cannot determine the
should
issue,
essary to reach this
qualifications
we do not.
a cleric should have
Lam,
(Tex.
Attorney
represents respon-
The
53.
General
56.
186
Williams v.
52 S.W.3d
longer
party
dents but is no
to the case.
2001).
("Congress
54. U.S.
I
amend.
shall
Const,
Fisher,
57. In re Commitment
164 S.W.3d
respecting
make no law
an establishment of
here,
(Tex.2005) ("Where,
as
Conn.,
religion-”);
Cantwell v.
310 U.S.
parties
argued
have not
that differences in
296, 303,
65. Locke v.
or that
that are
647 religious full from a apparent. recog- instruction is Nor can it obtains accreditation say principal primary we that the or effect agency, which, noted, is nized as we have is subchapter of G to advance or inhibit Coordinating by the Board considered religion, as although explained we have rigorous be at least as an exercise as com- length, a effect substantial of the statute is pliance the Board’s standards. preference post- to indicate the State’s for true, Coordinating It is as the secondary religious instruction that meets may that an institution argues, choose the Board’s standards. But it fair to is standards, to burden itself with state but say that a or principal primary effect is to disentangle option does not the State ap- advance education the State choice, matters. The proves and what it does not. inhibit We make, institution every must determines beyond think it dispute serious clearly entangles may statute excessively and whether institution use restricted government in matters of in- terminology, that its indicating programs standards, struction. The Board’s approval. expression have state It this of recognized those accrediting agencies, approval approval of or lack of of cannot be applied thorough, without a de- entangles instruction that the State in reli- tailed, repeated examination of an in- gion. operations stitution’s and curriculum. Several Justices of the Court examination, such an
Without
the Board
test,77
have criticized
Lemon
and while
determine,
must,
could
as it says it
not at
take
liberty
we are
criticism for
whether,
example,
character,
ed-
“[t]he
rejection,
vantage point,
from our
ucation,
experience
in higher edu-
Court seems over
to have
time
become
faculty
cation of the
shall be
such
“particularly attuned to whether the chal-
reasonably
ensure
the students will
government
lenged
practice purposefully
receive an education consistent with the
effectively
religion,
‘endorses’
an inqui-
objectives of the course
program
of
ry
generally
courts
a component
consider
study.”76
This is
one of
than
more
of
first
the Lemon test’s
and second
of
score
standards
institution must
parts.”78
explained,
meet to obtain
As we have
approval
subchap-
access
re-
clearly
stricted terminology.
expresses
And it must demon-
ter G
the State’s en-
compliance
strate its
every
years
two
until
of particular religious
dorsement
education
671,
5.214(a)(5) (1998);
646,
§
76. 19
Liberty
Religious
Regan,
v.
444 U.S.
Tex. Admin Code
7.7(9) (2007).
accord 19
840,
(1980)
(Stevens,
63
94
100 S.Ct.
L.Ed.2d
Tex. Admin. Code
J.,
Works,
dissenting);
Bd.
Roemer v.
Pub.
See,
Doe,
e.g.,
Indep.
Fe
Santa
Sch.
v.
Dist.
2337,
426 U.S.
96 S.Ct.
49 L.Ed.2d
290, 319-320,
2266,
530 U.S.
147
(White, J.,
(1976)
concurring).
179
(2000)
C.J.,
(Rehnquist,
L.Ed.2d 295
dissent-
career”);
ing) (describingLemons “checkered
Lara,
171,
(Tex.
v.
Williams
52 S.W.3d
190
Chapel
Lamb’s
Ctr.
v.
Moriches
Free
Union
2001)
592,
(citing Allegheny,
U.S. at
492
109
Dist.,
384, 398-399,
Sch.
508 U.S.
3086);
Lynch Donnelly,
S.Ct.
accord
v.
465
2141,
J.,
(1993) (Scalia,
352
L.Ed.2d
con-
668, 688-694,
1355,
U.S.
S.Ct.
ACLU,
curring); County Allegheny
v.
(1984) (O'Connor, J.,
L.Ed.2d 604
concur
573, 655-56,
(Ken-
“The of the Establishment Ill protect against Clause is to state ‘sponsor A ... and in reli
ship
active involvement’
Here,
gious activity.”84
ac
religious
any
Amendment also forbids
The First
tivity
offering religious
is
instruction and
prohibiting
...
the free exercise”
“law
recognizing attainment with certificates
Likewise,
I,
religion.85
article
section 6
clearly reflecting that such instruction is
Texas
states:
Constitution
religious. We do not
restric
address what
All men have a natural and indefeasi-
imposed
tions
institu
ac-
right
worship Almighty
ble
God
tions that offer a secular education or
their
cording to the dictates of
own con-
diplomas
award
or other certificates for
compelled
sciences. No man shall be
study
not clearly
courses
denominated
attend,
support any place
erect or
religious.
It
imagine
is hard to
a more
any ministry
to maintain
worship, or
in religious training
active involvement
No human authori-
against his consent.
by determining
than
it
whether meets
whatever,
to con-
ty ought,
any case
comprehensive
by
standards set
the Coor
of con-
rights
trol or interfere with the
Board,
dinating
equally
imag
hard to
of religion....
science matters
sponsorship
ine a more direct state
of reli
gious
federal
by indicating
education than
We have treated the state and
every
every
institution’s name and on
guarantees
academic Free Exercise
as coextensive
board,
prescribed by
opportunity
“any
time
the institution
there has never been an
for
may appeal
eligibility
for extension of
cer-
for
...
if there
indeed a conflict
court
to see
having
tification because of
been denied ac-
any
requirements
between
[the State's]
policies
creditation due to
of the institution
prac-
beliefs or
[HEB Ministries’]
good
based on
beliefs or other
stops
saying that it
tice.” The Board
short of
sufficient cause as defined
rule of the
any
would have—or even could have—offered
applica-
board. The board shall consider the
special
institutions.
allowances
pro-
tion of
accreditation standard that
hibited accreditation
institution on the
Corpus
People’s Baptist
84. State v.
Christi
religious policies practiced by
basis of
Church, Inc.,
(Tex.
683 S.W.2d
694-695
prima
justification
institution as a
facie
Comm’n,
1984) (quoting
Tax
U.S.
Walt
extending
eligibility
for certification if all
664, 668,
HEB Ministries
as we have
applicability
ground
on the
the law
said,
(or
G
subchapter
violates its Free
proscribes
conduct that his
prescribes)
rights
Exercise
by requiring that it either
(or
religion prescribes
The
proscribes).”91
standards,
comply
state
thereby
with
stated,
only exceptions, it
had
compromise
religious
mission,
its
training
Exercise
involved not the Free
Clause
terms,
or forego the use of restricted
in-
alone,
but the Free Exercise Clause
cluding “seminary” and common program-
conjunction
other constitutional
with
designations
diplomas.
level
for its
The
protections,
speech
such as freedom of
Coordinating Board
that subchap-
asserts
.... And it
a case
easy
is
envision
ter G does not violate the Free Exercise
challenge
which a
on freedom of associa-
Clause because it
a neutral
gener-
law of
be rein-
grounds
tion
likewise
would
not,
al applicability, or if
then because the
by
forced
Exercise
con-
Free
Clause
compelling
regulat-
State has a
interest in
....
cerns
ing post-secondary schools. The Board
compliance
stresses that
subchapter
present
present
does not
case
voluntary
G is
and that other terms are
situation,
exer-
hybrid
such a
but a free
comply.
available to schools that do not
any commu-
cise claim unconnected with
urge
activity.... Respondents
nicative
dispute
This
centers on whether and
hold,
simply,
us to
oth-
quite
when
apply
Supreme
how
the United States
prohibitable
accompa-
conduct is
erwise
Employment
Court’s decision in
Division
Smith,89
convictions,
nied
Smith,
v.
two Native Ameri-
the conduct itself
can
convictions
peyote
Church members who used
regula-
must be free from
purposes
governmental
sacramental
fired
were
and then
that,
unemployment
denied
benefits
tion. We
held
because
have never
drug
being
their conduct violated state
no
laws.90
decline to do so now. There
Marshall,
Exercise,
87. Tilton v.
925 S.W.2d
677 n.
Free
that Was
Amicus Brief
(Tex. 1996) (“Because
(1990);
Religion
Filed,
argued
6
Tilton has not
8 J.L. &
99
Never
Ira
persuasively
application
for a
different
Lupu, Employment
C.
Division v. Smith and
Court-Centrism,
provisions
1993
First Amendment and Article
Supreme
the Decline
I,
(1993);
pertain
BYU
Michael W. McCon-
they
Section 6 as
to the
L. Rev. 259
free exer
nell,
religion,
and the Smith
deciding
we
Free
cise
assume without
Exercise Revisionism
(1990); Mark
Decision,
guar
57 U. Chi L.Rev. 1109
that the
and federal
state
free exercise
Yudof,
Balance,
G.
Liberty
Religious
in the
respect
antees are coextensive with
to his
(1994).
claims.”).
SMU L. Rev. particular
89.
L.Ed.2d
See,
Delaney,
88.
John
e.g.,
Police Power Abso-
Nullifying
lutism and
the Free Exercise Clause:
Smith,
Critique
Oregon
A
25 Ind. L.Rev.
(1991);
Formal,
Douglas Laycock,
Id. at
93.
Id. at
96. Id. at S.Ct. 2217. Id. at 103. 2217. Id. at separate- standard that we once a law Justice Souter also concurred apply est Smith, Smith is his over requirements ly, expressing misgivings fails to meet really means he at the watered down but decided before arrived says. targets principle,” A reli- what law noncontroversial “[T]he Court. in Smith gious said, though conduct distinctive treatment estab- “expressed he in- legitimate before, governmental or advances the Free Exer- long lished [is] only against a reli- terests conduct with prohibiting is cise Clause offended when gious motivation will survive strict scru- exercise from a law results tiny only rare cases. It follows generally applicable.”106 not neutral or have these Smith, already said, what we said signifi- he read he its But as ordinances cannot withstand this scruti- only in that the cance “is not its statement ny.104 no more requires Exercise Free Clause than ‘neutrality’ ‘general applicability,’ Scalia, Concurring separately, Justice particular, adoption but also Smith, for the ex- who wrote Court *24 neutral- conception of free-exercise narrow plained further: 107 ity.” Justice Souter continued: “neutrality” “general The terms neutrality is broad applicability” are not to be found within our common notion of course, itself, merely might what enough the First Amendment to cover not as neutrality, in earlier cases called formal which a [Smith] but are used be would requirement to describe those characteristics free-exercise to discriminate prohibits activity object cause a an a bar laws with an law might in engage against religion, to also particular individual wishes what which, neutrality, in reasons not to called substantive nonetheless object, demanding to a secular prohibiting constitute a “law ... addition to generally require government free exercise” of religion within would differences meaning of the First Amendment. accommodate view, neutrality religious practices from for- my exempting the defect of lack of to If the Free Exer- applies primarily mally those neutral laws. laws only protection their terms impose on the cise secures disabilities Clause discrimination, a for- (e.g., religion excluding against deliberate basis a law public requirement from mal will exhaust members of a certain sect command; if benefits); neutrality the defect of lack whereas Clause’s rather, Clause, Exercise safe- primarily Free general applicability applies which, right in then- guards engage those neutral though laws unnecessary govern- free terms, activity their construc- through design, interference, requires tion, practices the Clause target or enforcement mental substantive, formal, religion as neutrali- particular for discriminato- well ty.108 ry treatment.105 Lukumi, (emphasis 2217 113 2217 add- 107. Id. at S.Ct. 508 at brackets, marks, (internal ellipses, ed). quotation omitted). and citation (citation 561-562, 2217 Id. at J„ (Scalia,
105. Id. at S.Ct. omitted). footnote (citations omitted). concurring) J., 559-560, (Souter, 106.Id. concurring). concern, easy case—the Court illustrate his Justice Souter Lukumi was
To
on the result —because
suggested:
was unanimous
genesis
purpose
ordi
clear
law,
all,
applicable
A secular
sacra
to restrict
the church’s
nances was
alcohol,
prohibits consumption of
for ex-
As the Court
mental animal sacrifices.
religions
affect
ample, will
members
case,
in question
“the laws
summarized
differently
require
the use of wine
by officials
did not un
enacted
who
were
religions
from members of other
derstand,
or chose to
perceive,
failed to
nonbelievers, disproportionately burden-
actions
ignore the fact that their official
of, say,
ing
practice
Catholicism or
commitment
the Nation’s essential
violated
exemption
Judaism. Without an
for sac-
Though
freedom.”
Smith
wine,
ramental
Prohibition
fail the
a church’s
restricting
also
involved
law
religion
test
neutrality.109
purpose
practice,
sacramental
was
prohibition
place
“The
law
earlier this
and its en
prevent drug
generally
abuse
century,”
noted,
exempt
he
“did in fact
to the
completely
actment
unrelated
was
” purposes.’
‘wine for sacramental
Free
Justice Blackmun
practice.
church’s
As
concluded,
protections,
Exercise
he
extend
Lukumi,
the case
observed
would have
beyond
he took
what
to be the rule
been much harder if the church had been
Smith:
generally
requesting
exemption
“an
from a
Rather,
said,
we have
cases
“[o]ur
have
That
applicable anticruelty
hypo
law.”113
established that
free exercise in-
‘[t]he
thetical and Justice Souter’s illustrate
*25
quiry
government
asks whether
has
in
applying
difficulties in
the rule
Smith.
placed a substantial burden on the ob-
amici
ar-
HEB Ministries and
curiae114
servation of a
religious
central
belief or gue
apply
the rule does not
in this case
and,
so,
practice
if
a compelling
whether
subchapter
directly
because
G
interferes
governmental
justifies
interest
the bur-
religious group’s
a
education and
with
”111
den.’
ministers,
that are
training of its
activities
Neither the
specifically protected by
Court nor Justice Scalia re-
the First Amend-
sponded to Justice Souter’s
amici
support
argument,
concerns.
ment.
of this
561,
(footnote
Lukumi,
2,
109.Id.
113 S.Ct.
113 S.Ct.
omit-
110.
against
employment
churches for
discrimi-
Accordingly,
turn to
we
the matter of
nation.116 But
gov-
these cases address
applies,
Smith
first to
how
section 61.313’s
ernment
interference in selection of the
limitation on the use of “seminary”, and
clergy, not
training.
education and
then to section 61.304’slimitation on terms
Subchapter
onlyG
obliquely affects reli-
reflecting program-level
at-
gious groups’
clergy.
selection of their
It
tainment.
may influence
in seeking
students’ choices
study,
course
it
does not
B
prohibit
group
calling
from
a minister
Undoubtedly,
regulating
a statute
does not
“degree”
who
hold a
from a
“church”, “mosque”,
use of words like
“seminary” or
group’s
otherwise limit a
“synagogue” by groups that do not meet
freedom to select
whomever
chooses.
state standards would not be a neutral law
subchapter
impact
While
G’s
of general applicability permissible under
undeniable,
education is direct and
the au-
Smith because
meanings
the words’
light
thorities cited shed little
on whether
exclusively religious,118
regulat-
and a law
it infringes on Free
rights.
Exercise
As-
ing
target
their use would thus
religion.
suming
government
regulation of
Court said as much Luku-
clergy selection
prohibited apart
regulation
mi when it concluded that
Smith,
assumption
which seems a safe
“sacrifice” and “ritual”
consistent
was
though
subject,
even
Smith is
on the
silent
but not conclusive of facial discrimination
subchapter
we do not think
G can be so
because those words did not refer exclu-
though,
characterized. And
as we have
sively
practices,119 implying
*26
above,
government
noted
regu-
cannot
had,
if they
reached the
would have
late
education
more than
opposite conclusion.
selection,117
clergy
argument
here is
subchapter
G’s
are
meaning
“seminary”
standards
not con-
is also not
stitutionally infirm because they apply
exclusively religious.
Its
is
origin
secular
graduate
Thus,
generally.
education
and
metaphorically
we
related to edu-
semen,
analyze
decline
invitation to
the Free
cation. Derived from the Latin
Smith,
“seed”,
apart
meaning
Exercise issues here
“seminary” once meant a
Milivoje
1974);
Army,
E.
Serbian
Orthodox Diocese v.
McClure v. Salvation
115.
460 F.2d
vich,
696,
2372,
(5th
1972).
426 U.S.
49 L.Ed.2d
553
Cir.
(1976).
151
Kurtzman,
Supra
v.
(citing
Lemon
117.
note 60
Church,
Congregational
v.
Callahan
First
602, 625,
116.
(1971))
403 U.S.
gave distinctly cast, seminaries a added to provision So does a the Texas compared to other educational institutions I, Constitution in Article section 7 colleges like and universities which were prohibits appropriation public funds for schools, also often religious by adopting a any “theological religious seminary”.124 or establishing “Method of Seminaries for that “the adjectives we observed Clerics, educating and of the same there- ‘theological necessarily give or religious’ in”.121 But employment the Church’s meaning of a [“seminary”] place specif co-opt word did not its meaning. ically for the of men for the preparation Eighteenth-century seminaries in the least, ministry, teaching United or at States understood to were include both secular religious doctrines”,125thereby schools.122 suggesting And today, “seminary” still defined as a that the word without modifiers would school, solely religious school.123 clearly understood to mean a reli gious aspects school. But other two
Primarily, however, “seminary” is used
phrasing
noting.
framers’
worth
They
to refer to a religious school. The Coordi-
obviously
recognized
“theological or
nating Board
pointed
single
has not
us to a
religious”
“seminary” fit together,
Texas,
seminary
secular
or
even
it made sense to refer to
States,
seminaries as
matter,
United
for that
either at
theological
present
or
because seminaries
Legislature
1997 when the
they
often
appear
amended section
were. And
61.318
include “semi-
have
nary”
“college”, “university”,
thought
it made more sense than referring
and oth-
er institutional
religious colleges
names
restricted
to theological
words.
or uni
(2d ed.1989).
tionary
surprisingly,
Not
Webster's
Third New International
Dictio-
(1981);
then,
English
14 The Oxford
nary
generally agreed
scholars have
that the
(2d ed.1989).
Dictionary
provided funding
bill would have
for nonreli-
See,
gious
e.g., Laycock, “Nonpre-
schools.
121. The Canons and Decrees
of the Sacred and
Religion:
ferential"
A
Aid to
False Claim
(J.
187-192 Wa-
Oecumenical
Trent
Council of
Intent,
Original
Maty
About
27 Wm. &
trans., London, Dolman,
terworth ed. &
(1986) ('Any
L.Rev.
n. 108
tax-
1848),
http://history.hanover.edu/
available at
church,
designate
payer
could refuse
texts/trenthtml.
*27
undesignated
going
church taxes
to a
Rosenberger
&
phrase
Rector Visitors Univ.
fund for
The bill
schools....
used the
122.
of
Va„
1,
869 n.
learning,'
‘seminaries of
which almost cer-
of
(1995) (Souter, J.,
No institutions, religious subjects, even amending Legislature’s section intent beyond regulation; it contends state “seminary” to add 61.313 names institu regulate cannot using, tions are but it must that the State restricted *28 institution; (3) eligible establish financial § 126. Tex 56.072. Educ.Code coordinating board need with in accordance 56.075(a) ("To eligible § 127. Id. be for em- rules; (4) comply with procedures work-study program person ployment in adopted by requirements the coordinat- other by must: be a Texas resident defined ing subchapter.”). board under this rules; (2) coordinating be board enrolled for a full course load and at least one-half of 56.075(b). § 128. Id. study of in an conform to course individual ensuring that ‘seminaries’ are training part education of students as interest in religious study of a mission. of and academic genuine places fact respect religious learning.” With Coordinating Board insists sec- study, of think the State has no courses we tion 61.313 does not HEB violate Minis- incapable in fact such interest at all and is rights by restricting tries’ Free Exercise determining “genuine” of what is word, single its of a “seminary”, use when not. The learning and what is study and available, others are like “Biblical Insti- argues to exclude seminaries tute”, “Center”, “School”, “Academy”, regulation post-second- from the of State’s of Religion”, “School or “School of Theolo- ary seriously education undermine would It gy”. is not clear that the read- Board’s effectiveness, but HEB Ministries does its ing of the statute is correct. Section an exclusion. It argue so broad only 61.313 restricts not the use of a listed only religious pro- contends that a school’s term but also “a having term a similar grams need not meet state standards be- meaning”.129 If meanings of “semi- seminary. fore it call None of can itself nary”, “school”, religion” and “school of diploma of on the instances mills’fraud similar, are not then meaning of “simi- public cited the Board such involves lar” is itself unclear. If the Board is sum, programs. the Board has failed to wrong only and section 61.313restricts not any the State has interest show the use of “seminary” other word restricting “seminary” by use of the word of related import, then the statute denies instruction, offering religious let schools religious school that does not meet state highest alone an interest of the order. standards all access to names used such schools. And if the right, Board is that section Accordingly, we conclude statute nevertheless limits access to the use the name 61.313’srestriction that, available, name unlike all others dis- reli- “seminary” by offering only schools tinctly describes schools. Either study the Free gious programs violates way, statute, application guarantees Exercise the First Amend- offering only instruction, schools ment and the Texas Constitution.
targets religious practices, discriminating comply
between those that
with state stan-
C
not,
dards
those that do
and is not
challenge
HEB Ministries does not
merely a
regulation
post-second-
neutral
authority
require
pri
that a
State’s
ary education.
postsecondary educational institution
vate
law
it can
prescribed
“[A]
restrictive
meet
standards before
must
practice
degrees,
advance interests of the
section 61.304
grant
which what
61.302(1)
highest
does,
order and must
narrowly
tai
but contends that section
pursuit
lored in
“degree”
broadly
those interests.”130
defines
so
that a non-
We
effectively
have found
one other
regu
compliant
state that
school is
left with no
“seminary”
lates use of the word
attainment.
as sub- words to describe educational
chapter
Coordinating
religious study programs,
G does.131 The
For
HEB Minis
asserts,
Board tells us: “The State
a strong
pressure
comply
has
tries
this
1303;
61.313(a).
§
129. Tex. Educ.Code
24 Pa. Cons.Stat.
131. 15
Pa.
Cons.Stat.
§§
Aye,
130. Church
the Lukumi Babalu
Inc. v.
Hialeah,
City
We
education,
regulation
terminology
requirement
state
for a liberal arts
this
attainment,
in recognizing
used
student
as may
a distraction or
be considered
worse
religious
programs,
to
applied
educational
ministry
for the
preparing
someone
the Free
violates
Exercise Clause.
These are but two
religious
other
service.
Coordinating
argues
Board
that because
educator’s meat
examples. A secular
regulation
target
religious
does not
poison,
and
religious
a
educator’s
vice
applies
but
secular and reli-
programs,
to
improve
quality
versa.
that
Standards
programs alike,
is a neutral
gious
it
law of
impairing
of secular
while
sec-
education
that,
applicability
according to
general
against reli-
tarian education discriminate
Smith,
in
impact
rule
does not
Free Exer-
gion.
Coordinating
argues
think,
rights.
cise
This
we
fo-
argument,
education,
religious
its standards benefit
narrowly
concepts
cuses too
on the
neu-
judgment
is a
call the First
trality
general applicability, separate
and
permit the
Amendment does not
State
the First
they
Amendment’s concerns
event,
any
argues,
make.137 In
the Board
analyze,
are meant
and
help
reduces
all
pro-
intent is to benefit
educational
regulation
to a
permit-
them
rule that a
is
grams.
easily
But
we can
while
assume
long
ted as
as it
universal.
is
Justice
true,
this to be
must also consider
we
hypothetical involving
Souter’s
Prohibition
Tyn-
effect
on
of the standards
schools like
fallacy
and
Eucharist illustrates the
in
dale
a
mission. The Board
with
such
rule.135 A
is not
law
neutral or
only
argues
regulates
that section 61.304
generally applicable
purposes
apply-
is
granting
degrees, something
ing
Free
merely
Exercise Clause
be-
authority,
well within the State’s
not how
it
cause
affects
it
everyone;
important
is
are
subjects
taught. But
religion is
differently
how
affected
because
prohibition
granting
statute’s
is
degrees
religion.
it is
This concern is critical when
pervasive
necessarily
so
effect
communication,
the law affects
as the Su-
coercive,
it
as indeed
is intended to be.
preme
Smith
plainly implied
Court
in
reemphasizing that the law there had no
In the sense that section 61.304is direct-
effect.136
such
diploma abuse,
did
problem,
ed
originate
any
in or have
distinct associ-
Standards for the
content
educational
practice,
ation
the stat-
regard
instruction
not neutral with
closely
ute more
resembles the
law
drug
religious studies
because
merely
they also
upheld in Smith than the animal sacrifice
studies,
apply
secular
as the standards
ordinances struck down Lukumi. But
subchapter
under
G
show.
plainly
Aca-
freedom,
strongly encourages
section
compli-
61.304
example,
demic
which the
standards,
ance with state educational
Coordinating
require,
Board’s standards
role,
which in turn
the content
opera-
no more than
affect
per-
has
a limited
all,
no
tion of
haps
place
programs,
at
school
whose
sense,
is to
in that
statute
mission
advance the doctrinal tenets
differs
Study
cases,
specific
general
of a
faith.
from the
“the
sub-
laws
both
affects
Lukumi,
(1990))
Supra
(citing
accompa-
notes 107-108
108 L.Ed.2d
2217)
accompany-
nying text.
ing text.
Kurtzman,
137.See Lemon v.
403 U.S.
Supra
(citing Employment
note
Div. v.
court held that the Free Exercise Clause Exer- that it the Free is so broad violates require exemption did not a blanket of the First Amendment guarantees cise regulation.144 schools from state The State Texas Constitution. and the said, regulation But as have was we *32 study may deny religious program G, and pervasive subchapter not as as the use of all as such clearly denominated College argument did not limit its Shelton describing capable words religious programs. to its In Tennessee ex said, HEB Min- have achievement. As we McLemore v. School rel. Clarksville of the statute’s complain istries does not Theology, Tennessee Court “de- restriction on the use the word upheld regulation theologi- broad state of a it is and do not consider whether gree”, we ministers, cal school that trained of- permissible. courses, granted only fered no secular and theological degrees.145 respectfully We disagree with that court’s decision. appeals judgment of the court Finally, opinion in an the Board does not is remanded to the and the case reversed cite, Attorney the Texas General ad- injunction its and trial court vacate subchapter dressed whether G would vio- to consider HEB Min- penalties, award
late the Free applied Exercise Clause as fees,149and application attorney istries’ “university” only religious offered in accordance with proceedings for further Relying heavily instruction.146 on the opinion. this decision, College Shelton ex- and without pressing a the statute view whether opinion Justice filed WAINWRIGHT rights, opin- burdened Free Exercise in part dissenting part, in and concurring ion concluded that “a court would conclude in concurring judgment, in the [subchapter regulations and the joined. G] JOHNSON Justice adopted Coordinating thereunder filed an Chief Justice JEFFERSON Board, general as a matter are the least dissenting concurring part opinion achieving restrictive means of the state’s joined. GREEN part, in which Justice maintaining interest in integrity in the part Justice took no WILLETT postsecondary degrees protecting case. decision of the misleading repre- citizens from fraud and sentations.” respectfully We dis- JEFFERSON, joined Chief Justice agree.148 GREEN, concurring part Justice dissenting part.
Accordingly, we conclude that section 61.304’s restriction that a penalty on the words imposed The Board civil issuing thirty- against Tyndale illegally institution use to refer to ("While per- Attorney opinions are Id. at General’s 144. 996-997. controlling they are not on the suasive courts.”). 706, 707-708, (Tenn. 145. 636 S.W.2d 1982). Agency Leeper, v. 893 S.W.2d 149. Texas Educ. 1994) (Tex. (stating "by authoriz Op. Att'y Tex. Gen. No. JC-0200 ing declaratory judgment to construe actions governmental legislative enactments of 147. Id. attorney authorizing awards entities and fees, [Declaratory Judgment neces Act] See, e.g., governmental immunity sarily Commissioners Court Titus waives for such (Tex.1997) awards”). County Agan, 940 S.W.2d degrees. Tyndale four appeal Church, Inc., chose not to People’s Baptist Christi penalty (Tex.1984), administrative or the Board’s S.W.2d we held that Instead, findings. HEB Ministries and an establishment clause challenge to a two unrelated entities —Southern Bible In- statute permitting licensing state reg- Hispanic stitute and facilities, Bible Institute— ulation of child-care applied launched a facial constitutional attack on church-operated facilities, was “mis- portions of the Specifical- Education Code. placed.” We observed: ly, HEB Ministries and its co-plaintiffs The Establishment Clause cases address 61.302(1) sought a declaration that sections the issue of gov- whether some form of and 61.304 of the Education Code violated aid, indirect, ernment either direct or rights guaranteed by Process, the Due *33 institution violates Estab- Speech, Establishment, Free and Free Ex- lishment Clause. ercise clauses of both the United States Unlike the traditional Establishment and Texas constitutions. Both the trial cases, Clause this govern- case involves appeals court and the court of concluded regulation ment of a child-care institu- that the statute regulating the issuance of tion part which is of the church ministry. degrees did not violate HEB Ministries’ This important distinction is rea- two constitutional rights. Today, however, a First, sons. to accept ar- [the church’s] majority of the Court—for differing rea- gument and invalidate the licensing and sons—concludes otherwise. Because the regulatory scheme because of “excessive statute does not unconstitutionally impinge entanglements” create a would dilemma on HEB Ministries’ speech freedom of applying three-pronged Establish- rights guaranteed by the Establishment test; ment prong Clause the second Clause, Clause and the Free Exercise I would be at odds with third. Re- respectfully agree dissent. I with the quiring nonreligious childcare facilities Court that section 61.313’s restriction on comply licensing with the state the use of the name “seminary” by schools regulatory exempting scheme while reli- offering only religious programs of study gious facilities in unequal would result Clause, violates the Free Exercise and I state treatment of the classes of two portion concur judg- Court’s institutions. unequal This treatment ment.1 could, arguably, impermissible under the second-prong of the Establishment
I
Clause test because
primary
effect
Establishment Clause
would be to
religion.
advance
Wainwmght
I agree
Second,
with Justice
licensing
regulation
state
this case
appropriately analyzed
is more
type
entanglement
is a
that differs
under the Free Exercise Clause than the
the entanglement
in the
discussed
Establishment Clause. The Establish-
traditional Establishment Clause cases.
ment
respecting
cases,
Clause forbids
“law
In those
the State must examine
religion.”
establishment
programs
determine what
are reli-
CONST, amend. I. In State
Corpus
gious
programs
what
are secular to
join
part
1. I
criminating
most of
III-B of the Court’s
between
comply
those that
with
opinion,
agree
proposi-
but I do not
not,
state standards from those that do
way,
tion that
ap-
the statute in its
"[e]ither
merely
regulation
post-
is not
a neutral
plication
offering only religious
to schools
secondary education.”
targets religious practices,
instruction
dis-
government
types
post-secondary
ensure that
aid reaches
certain
case,
nonreligious
In our
signals
ones.
achievement. Accreditation
regulatory
prohibits inqui-
state
scheme
message,
school’s
but a
approval
ry into the religious content of the
meets a
certification
the institution
homes’ curriculum. The
purpose
standards,
variety
and any
of educational
regulations
these
to assure
all
is
otherwise —
institution —
facilities,
child-care
secular and nonsecu-
degrees.
for authorization to issue
apply
lar, meet certain minimum
standards
Accordingly,
People’s Baptist,
as in
solvency,
areas such as financial
staff-
appropriate
“more
and direct means of
ratio,
child
nutrition and
care.
medical
challenging
constitutionality”
of this
Church,
People’s Baptist
more
and direct means of
however,
statutory
implicated,
scheme
questioning the constitutionality of this
passes
here
muster.
government regulation
through
...
*34
Lemon,
government practice
is
Under
Free Exercise Clause.” Id. at 695.
(1)
constitutional
if:
it
a secular
has
Such
the
People’s
is
case here. As in
(2)
principal
primary
purpose;
its
or
Baptist,
nonreligious
requiring
higher-edu-
effect neither
nor inhibits reli-
advances
cation institutes to comply with the accred-
(3)
and
gion;
excessively
it does not
itation
exempting religious
scheme while
entangle the government
religion.
with
in unequal
institutions would result
treat-
two,
ment
impermissible
ad-
(Tex.
Lara,
171,
v.
189
Williams
52 S.W.3d
of religion
vancement
under the second 2001). The
that
plurality concedes
the
Id.;
prong of the Lemon test.
v.
Cutter
cf.
accrediting
purpose
statute has a secular
Wilkinson,
544 U.S.
primary
effect
and that
neither ad
2118, 161 L.Ed.2d
(2005)(noting
1020
that
Instead,
religion.
vances nor inhibits
the
“an
religious
accommodation [for
observ- plurality
“beyond
that it
concludes
is
seri
be
ance] must
so that it
not
measured
does
dispute
clearly
ous
that
the statute
and
interests”);
override other significant
Jim-
excessively entangles
government
the
my Swaggart
v. Bd. Equali-
Ministries
of religious
matters
instruction.”
235
zation,
378, 396-97,
493 U.S.
at 647.
S.W.3d
(1990)
it runs afoul of the Establishment Clause.”
entirely voluntary and
comprehensive, are
233,117
Id.
S.Ct.
purport
paro-
to interfere
do not
explored
At least one state court has
See, e.g.,
any
chial mission of
school.
be-
contours
this inevitable interaction
Bd.,
Public
Roemer Md.
Works
in a
similar
church and state
context
tween
736, 764, 96
regulation adoption, if marriage or II
regulation
inconsistent
was
with
tenets
particular
religion.
of a
The state can
Free Exercise Clause
areas,
in
I
regulate
these
as believe it can
regulate
degrees,
the issuance of
because
WainwRight
I
agree
also
with Justioe
allowing religious
partici-
institutions to
that subchapter G does not violate the
pate
regulatory
simply
secular
schemes
Indeed,
Free Exercise
the plurali-
clause.
does not violate the Establishment Clause.
ty’s
analysis
inappropriate
extended
is
be-
cause HEB Ministries does not maintain
rejected
The Supreme Court
a similar
that the
prohibited
conduct which it is
argument
University
in Bob
v.
Jones
Unit-
(the
engaging
degrees
from
issuance of
States,
ed
a case which Bob Jones Uni-
documents)
religiously
and similar
is
moti-
versity contended, among
argu-
other
explained
vated. As the
Court
ments,
denying
exemption
it a tax
Lee,
“preliminary
United States v.
in-
by
violated the Establishment
pre-
Clause
quiry in determining the existence of a
ferring religions whose tenets did not re-
constitutionally required exemption”
racial
quire
discrimination over those that
a neutral
under
general application
law of
intermixing
believed racial
was forbidden.
the Free
com-
Exercise Clause is whether
Jones,
30,
Bob
604 n.
pliance with the
“violates
chal-
[the
law
(1983).
6. 508 U.S. S.Ct. 2217
667
881,
principles.
speech.
Id. at
S.Ct.
ligious
HEB Ministries does of freedom
110
contend that
tenets re-
religious
its
1595.
quire
graduates
its
to hold documents
Thus, in
to arrive at the conclusion
order
public
general
likely
would
confuse with
subchapter
G violates the Free Exer-
degrees granted by
colleges.
accredited
Clause,
in a
plurality engages
cise
HEB Ministries
allege
does not
there
case
reading of the record and the
strained
any religious significance
“degree,”
to
characterizing the statute as restrict-
law—
“bachelor’s,”
Moreover,
or similar terms.
be-
ing
“the communication of
has
prohibited Tyndale
the State
from
a
liefs” such
State must have
describing
accurately
graduates’
ac-
interest and must tailor its
compelling
give
example,
achievements. To
but one
narrowly.
creditation scheme
The plurali-
subchapter G
prohibit
would not
a reli-
ty
implement
heightened
would
this
scruti-
gious institution
issuing
from
a document
ny when “the law
communication.”
affects
certifying
completed
“John Doe has
added).
(emphasis
285
659
But
S.W.3d
an advanced course of
X
study in
and is
the Smith
used the
“regulate”
Court
word
qualified minister in Y church.”
cases,9
discussing
this line of
a
assuming
prohibition
Even
that a
on the
precedent
careful examination
reveals
(or
of degrees
similarly
issuance
worded much
higher level
state involvement
documents) violated HEB
reli-
Ministries’
implicate
necessary
the freedom
beliefs,
gious
its Free Exercise claims
speech analysis.
“hy-
The examples of
fail
Coordinating
would
because the
speech
brid” freedom
and Free Exercise
maintain
right
would
to ensure edu-
decisions cited
Smith
involved discre-
Scalia,
cational standards. As Justice
tionary licensing system for
solic-
writing
Court,
for the
Employ-
noted in
itation,
requiring
State to determine
Smith,
ment Division v.
cause
given
religious10
whether a
was
has
Court
“never held that an individual’s
solicitation
dis-
applied
flat tax on
religious beliefs
compli-
excuse him from
semination of
ideas.11
ance with an
prohibit-
otherwise valid law
ing
regulations
conduct that the
were struck down
regu-
State is free to
Smith,
878-79,
analysis
under a
872,
“hybrid”
directly
late.”
limited
U.S.
(1990).8
contrast,
communication.
only exceptions
S.Ct.
Tyndale
this rule “have
similar
free
involved not the Free Exer-
institutions are
alone,
subchapter
cise
to say
Clause
but the Free Exercise
under
G
and teach what-
conjunction
Clause
in-
they
government
with other constitu-
ever
wish without
protections,”
protection
tional
they
such as the
merely
barred
volvement —
Here,
notes,
Wainwright
Connecticut,
296,
as Justice
there is
v.
Cantwell
310 U.S.
304-307,
84 L.Ed.
regulate
no doubt that the
State is free
education,
postsecondary
may regu-
and thus
Pennsylvania,
v.
11. Murdock
(and
degrees
degree-like
the issuance
late
(1943);
institutions, the advertising, solicitation (1980), the Court L.Ed.2d representation by educational institu- analyzing method of the lawful- outlined its agents, tions or their and the mainte- speech: restrictions on commercial ness of preservation nance and of essential aca- cases, then, a speech In commercial degrees demic records. Because At four-part analysis developed. has equivalent indicators of educational at- outset, we must determine whether by employers judg- tainment are used by the First expression protected is ing training prospective employ- speech Amendment. For commercial ees, by public private professional it at least provision, come within groups in determining qualifications for activity concern and not be must lawful prac- admission and continuance of Next, ask misleading. we whether tice, general public assess- interest is sub- governmental asserted ing the competence persons engaged inquiries yield positive If both stantial. range necessary in a wide activities answers, must determine whether we welfare, general regulation by law gov- regulation directly advances the college university the evidences of asserted, interest and wheth- ernmental educational attainment public is than is neces- er it is not more extensive protec- interest. To the same end the that interest. sary serve legitimate and of tion institutions Wainwright case, cites In this Justioe them holding degrees those is also Hudson test misapplies Central public interest. HEB prong. Because excising its first Id. speech misleading is commer- Ministries’ Wainwright protected by it the First correctly recognizes speech, cial
Justice
States
Thompson v. W.
speech
at issue is commercial Amendment.
Ctr.,
such,
occupies
one of the Med.
speech. As
As the Cen-
Amendment hi-
lowest on the First “ noted, no “there can be erarchy, a ‘limited measure tral Hudson Court enjoying only objection suppression to the protection, commensurate its sub- constitutional accu- messages that do not position in the scale of First of commercial ordinate activ- values,’ subject rately public inform the about lawful Amendment and is may ban regulation might imper- ity. government ‘modes forms *40 670 likely to
communication more deceive the Hudson factors. But even if speech than it....” not public misleading, easily Central were statute sat- inform Hudson, isfies the other require- Central Hudson S.Ct. 2343 (and added). ments. Thus, recognizes As the (emphasis government “the Court HEB not dispute), Ministries does may freely regulate commercial speech State’s interest here is substantial. “Di- ... misleading,” is Florida Bar v. ploma ongoing mills” are an problem, It, 618, 623-24, For Went made prevalent by more the advent of the (1995) (cita- 132 L.Ed.2d See, Roger Cramer, Internet. e.g., J. omitted), tions remaining and the Central Director, Managing U.S. General Account- only Hudson if apply speech factors Office, ing Testimony before the U.S. Sen- misleading. Affairs, ate Committee on Governmental The record in this case leaves little Diploma Employees Mills: Federal Have speech doubt that HEB Ministries’ was Degrees Diploma Obtained from Mills and misleading. program Tyndale’s from Schools, Other Unaccredited Some at Gov- June Commencement Exercises lists 11, 2004), Expense (May ernment http:// headings, various as “Doctor of Phi- such gao.gov/new.items/d04771t.pdf (May losophy,” Theology,” “Doctor of “Doctor of 2004) (all Internet materials as visited Au- Ministries,” of Theology,” “Master “Mas- 29, 2007, gust available in clerk of Arts,” Diploma ter of Level “Bachelor court’s file)(noting case that some senior- Studies,” Theological and “Associate of including level federal employees, manage- Biblical Studies.” each heading Beneath responsible ment-level employees are names of students who had com- emergency operations at the National Nu- study. those pleted courses of The course Administration, clear Security had ob- catalog Tyndale nowhere states does degrees tained diploma from mills and oth- degrees, not offer the catalog in fact schools); er Pa. College unaccredited Sues conveys impression. the opposite It fea- MBA, That Gave Dec. Cat an department tures faculty heads and mem- http://www.foxnews.eom/story/0,2933, identify “doctors,” bers who themselves as 140727,00.html (describing alleged Texas though they only diplomas even have that, $299, diploma mill exchange Tyndale, an institution without a certificate awarded an MBA a cat in Pennsylva- authority by the Coordinating issued nia); Release, Press Texas Office of Attor- Faculty Board. use the members familiar General, ney Attorney General Abbott degrees, abbreviations for such as “Ph.D.” Judgment Gets Brothers Against Op- Who though “Th.D.” they even do not have erated Dallas Mill Diploma Fraudulent degrees. advertising actual materi- (Mar. 17, 2005), http://www.oag.state.tx.us/ als, Tyndale “[gjraduates that its boasted (describing oagnews/release.php?id=841 ... receiving professional pay increas- judgment against Trinity obtained South- Tyndale diplomas, sign recog- es ern bachelor’s University, awarded Moreover, and acknowledgement.” nition master’s, degrees and doctorate based Tyndale found that awarded testimony experi- students’ about life degrees, and HEB Ministries did not ap- ences).
peal
determination.
Because the State’s interest
is substan-
misleading
speech
tial,
Because
commercial
other
Central Hudson’s
factors come
freely
HEB
into
regulated,
play:
regulation directly
Ministries’
whether
fail,
interest,
and the
speech
free
claim must
Court
advances the State’s
and whether
technique
is “in
remaining
regulatory
proportion
need
reach the
Central
*41
Hudson,
to that interest.”
those
Cent.
447 U.S. The Education
satisfies
re
Code
564,
statutory
at
quirements.
requirements
learning. Diploma mills on terminology postsecondary would stand to describe the institutions, equal footing students, with accredited of their educational achievements and consumers would have no assurance hold, plurality, contrary I to the but would professor, counselor, then* engineer, State, limits, that the within constitutional graduated or chemist from an institution may require private educational institu- *42 that satisfied the Legislature's minimum minimum educational comply tions to with requirements for accreditation. they may postsec- confer criteria before A hold- students. ondary degrees on their
IV is barred the ing Legislature that the setting minimum from Constitution Conclusion college and for of standards the issuance Because permissibly regu- the statute institutions, religious graduate degrees speech, lates commercial it and because right for one establishes a constitutional presents no Establishment Clause or Free type postsecondary of institution to issue violation, respectfully Exercise Clause I degrees with regardless compliance of dissent the part judg- from the of Court’s holding precludes public standards. This ment that I concludes otherwise. would permissi- considering the from Legislature the appeals’ judgment reverse court of re- alternatives, allowing religious ble such as lating to the term seminary use the college degrees with institutions to issue render for judgment petitioners would gradua- on their appropriate disclosures on that issue. I would affirm the remain- de- indicating that then* tion documents der of the judgment. pro- grees are not from state-certified WAINWRIGHT, joined by Justice (if, not include grams example, they do JOHNSON, part Justice concurring mathematics, required study in minimum part, dissenting concurring in the science, humanities, communica- -written judgment. tion, instruction, or other computer basic subjects). tie the permanently This would
Today Court reaffirms the sacred it Legislature, precluding hands of the principle that Americans have a fundamen- considering constitutionally permissi- from right tal to religious their beliefs. The may concurrently ble so that alternatives United prohibits States Constitution ensuring protect religious freedom while government interfering this lib- with postsecondary degrees private that all erty, authority regu- as the state has no mean- represent from Texas institutions religious late beliefs. I concur in the Reli- ingful achievement. The decided, Court’s result on all issues some First Amendment gion Clauses of the reasons, except agree for different I one. result. compel do not this the Constitution government cannot dictate wheth- logic astray melding plurality’s goes private religious er call may institutions issuing gradua- a postsecondary the act of ad- themselves “seminaries” as the term right the absolute tion document with primarily religious mits connotation. beliefs, recognize religious fails to training Because of clerics teach- ensuring postsec- all Legislature’s ing religious religious insti- doctrines degrees designa- beliefs, ondary meaningful tutions is inherent Tyn- improper targeting tions not an State regulate also cannot license clerics government training. their I beliefs. The agree gov- also dale’s may dictate preclude religious ernment insti- not under the Constitution issuing some in its name and for religious institutions call themselves Code gradu- its 1998 graduation documents to seminaries, they may hire to teach whom which, using protected ates while teach, they may curriculum and what by Tyndale “degree,” term are advertised calling graduation document a bachelor’s degree satisfying or as equivalent certificate, of a degree, instead bachelor’s postsecondary de- part of a state-certified beliefs, is not an issue of notwith- gree program. standing Tyndale’s attempt to conflate the plurality, I also concur
two. $3,000 for us- Tyndale The Board fined reasons, different institu- “seminary” in ing the term violation 61.313(a)(1) right accurately tions have label the Education section documents, “doctrinal reasons” and fear graduation their as the Free Code.3 For rights,” “ecclesiastical jeopardizing Speech pre- Clause the Constitution *43 temporary a certifi- Tyndale did not seek broadly barring pri- cludes State from Board, authority long- from the nor cate of postsecondary using vate institutions from state-ap- er-term accreditation from a virtually terminology reasonably all proved accrediting agency.4 Tyndale now describes the educational attainment of argues twenty-one that the state-mandated their students. required for or a
standards
accreditation
authority
impermissibly
certificate of
I
See 19 Tex. Admin. Code
§
7.7.
intrusive.
Background
Tyndale
reg-
For
claims that the
example,
Ministries,
regarding
faculty qualifications
ulation
Petitioner HEB
Inc.1
ais
Graham,
prohibit
Billy
would
Reverend
non-profit Texas corporation and orthodox
Teresa,
Apostles,
Mother
and a Jewish
operates,
Christian church that
as one of
manger
teaching
carpenter born
a
ministries,
Tyndale Theological
its
at the institution.
Seminary and Bible
Tyndale
Institute.2
provides undergraduate
graduate
level
$170,000
Tyndale
fined
The Board also
education to students in ecclesiastical sub-
issuing “degrees”
for
stat-
purportedly
—as
jects such
theology, apologetics,
as
utorily defined—in violation
section
studies,
provides gener-
Christian
and also
61.304 of the Education Code. Section
al-education
English
courses
such as
in-
private postsecondary
prohibits
61.304
grammar, composition, and ancient world
“degrees”
from granting
stitutions
without
history.
Higher
The Texas
Education
authority
obtaining
first
a certificate of
Coordinating
Tyndale
Board fined
becoming
us-
from the Board or
accredited
ing
protected by
state-approved accrediting agency.
terms
the Education
a
Tex.
61.313(a)(1);
§
1. HEB
is unrelated
see also id.
Ministries
H.E.
Tex. Educ.Code
Grocery Company,
61.303(a)
Butt
which is also com-
(exempting
§
institu-
accredited
monly referred to
“HEB.”
tions).
as
aligned,
2. Because their interests are
I use the
"Tyndale
appeals
4.The
court of
stated
"Tyndale” interchange-
terms “HEB" and
any
steadfastly
participate in
has
refused to
ably.
processes
the alternative
available under
61.313(a)(1)
statutory oversight plan.”
tion, appellation, or series of letters or 61.313(a)(1),holding regu- that the State’s words, including associate, bachelor’s, of that term lation violated First doctor’s, master’s, equivalents, and their Constitu- Amendment of the United States signifies, to, purports gener- or is I, and 20 of tion and Article sections ally signify satisfactory comple- taken to the Texas Constitution. requirements part tion of of all or program study leading to an associ- trial The court of appeals reversed ate, bachelor’s, master’s, or doctor’s de- unregulated use judgment allowing court’s equivalent. or its gree “seminary” rejected Tyn- of the term Exercise, dale’s Free Establishment 61.302(1). Id. None of the documents Clause, Speech challenges. and Free by Tyndale graduation awarded at its 1998 appeals S.W.3d 633-36. The court actually “degree,” were titled judgment affirmed the trial court’s alleges that Tyndale used terminol- holding respect granting degrees, to the ogy on the documents and brochure *44 that section 61.304 not violate does descriptions bring the documents Clause, Exercise Establishment the Free the broad “degree” within definition of in Clause, speech. Tyndale’s or to free right 61.302(1). Though section not evident 628-29, Id. at 631-32. statutory from the language, the Board concedes that issuing “diplomas” now or II “certificates,” protected without the words Against descriptions, or brochure Constitutional Prohibition is not a violation Religious Regulation of section 61.304. State Convictions response fines, In Tyn- the Board’s dale filed this seeking lawsuit a declarato- Religion The that “Con- provide Clauses ry judgment that applicable gress sections of respecting shall make no law Education Texas Code are unconstitutional religion, prohibiting establishment of Exercise, Speech, the Free Free under the free exercise thereof.”5 U.S. Const. and Establishment They apply through Clauses of First amend. I. to the states Amendment of the United States incorporation Constitu- the doctrine of in the Four- tion, Worship and under Freedom of teenth Amendment. v. Connecti- Cantwell I, cut, 900, 296, in Article of the Texas 303, Clause section 6 310 U.S. 84 60 S.Ct. (1940). Tyndale Both and the Board Exercise Constitution. L.Ed. 1213 The Free motions for summary judgment. prohibition filed erects an unqualified Clause explicit ap- party 5. The Texas Constitution is more neither addresses in substance protection worship. of the freedom to "All these plication of the Texas Constitution right men have a natural and indefeasible issues and neither difference asserts worship Almighty according God to the dic- jurisprudence between the two constitu- of their own tates consciences.” tions, Tex. Const. analysis I would "limit to the First our I, art. 6. The are briefed under the issues simply its con- Amendment assume that analogous U.S. Constitution with reference to congruent Texas cerns are those of [the provisions in the The Texas Constitution. Times, See Inc. v. Constitution].” New plurality concludes that the Texas Constitu- Isaacks, 144, (Tex.2004). 146 S.W.3d 150 tion is "coextensive" the issues raised. As
675
I,
against government
6,
§§
with be-
29.6 The Free Exercise Clause of
interference
People’s
religious
Corpus
protects
liefs. State v.
Christi
First Amendment
Inc.,
Church,
692,
Baptist
683
695
the freedom to
ensuring
S.W.2d
freedom
(Tex.1984).
is abso
protects
opinions
The Clause also
cer- hold
beliefs and
Brown,
599,
tain conduct
beliefs.
366
motivated
lute.
v.
U.S.
Braunfeld
(1961).
Lee,
252,
603,
1144,
United
v.
563
States
455 U.S.
102
S.Ct.
6 L.Ed.2d
81
1051,
S.Ct.
L.Ed.2d
Divi
Employment
71
127
Under This
reiterated
was
Clause,
Smith,
may
the Establishment
the state
where the
Court
sion
prefer
religion
irreligión
obviously
one
“the First Amendment
held that
others,
religion
‘governmental regulation
nor
all
government
excludes
”
872,
exhibit hostility
religion.
towards
Everson
494
as such.’
U.S.
beliefs
1,
v. Bd.
Ewing,
877, 879,
1595,
Educ.
330
15-
A. Free Exercise Clause regulation must submit to state order to Specifically, call themselves seminaries. The United protects States Constitution *45 61.313(a) provides: section the free of religion exercise undue Const, I, state infringement. U.S. amend the institution been issued a Unless has 2, XIV, § cl. 1; v. amend Con of authority Cantwell certificate under this sub- necticut, (1) 296, 303, 900, 310 a chapter, person may U.S. 60 84 not: use the S.Ct. Const, (1940); L.Ed. 1213 see also art. “college,” “university,” “seminary,” term Tex Worship 6. The Free Clause of the Con- cases Texas 7. The Establishment Clause consider aid, government some form provides entirety: stitution in whether of either its indirect, entangles improperly direct or the All men have a natural and indefeasible Comm’n, government religion. in v. Tax Walz right worship Almighty according to God to 664, 1409, 670-75, S.Ct. 397 U.S. 90 25 their own dictates of consciences. No (1970); 697 Church L.Ed.2d see also of attend, compelled man shall be to erect or Hialeah, Aye, City Babalu v. Lukumi Inc. of support any place worship, of toor main- 520, 532, 2217, 124 508 U.S. 113 S.Ct. any ministry against tain No his consent. case, (1993). HEB L.Ed.2d In this does authority ought, any human whatev- in case challenge government support aid or of er, rights or to control interfere with of religion religious symbols complains or of religion, of conscience in matters no regulation of state its activities. preference given by shall ever be to law in Court decided Lukumi that because religious society worship. or mode But of dispute question a raised of freedom to duty Legislature pass it shall be the of the to governmental regula worship in the face of may protect necessary such tion, laws as governmental rather than efforts to ben equally every in the denomination religion, efit favor the Free Exercise Clause 532, peaceable enjoyment mode dispositive. of its own was U.S. at 2217; public worship. People’s Baptist, also 683 S.W.2d at see Const, I, § Tex art. medicine,” school,” “seminary” “school of is term but asserts “medical a center,” law,” conveys “health science the term a secular “school also school,” or in the offi- meaning. “law “law center” cial name nonexempt private or title of a Statutory interpretation begins with institution;
postsecondary educational meaning of statute’s plain and common (2) using describe an institution Ramirez, 109 McIntyre v. S.W.3d words. term listed Subdivision or a term (Tex.2003). 1975, 741, As enacted having meaning. a similar 61.313(a) only the terms section included 61.313(a). § comply To 28, May “college” “university.” Tex. Act of Educ.Code Code, with this of the section Education 1, 1975, R.S., 587, § 64th ch. Leg., Tyndale must state- twenty-one submit 1867, Legisla- Tex. Gen. 1870. The Laws id.; established standards. See 19 Tex “seminary” ture added term Tyndale § complains 7.7. medicine,” along with the terms “school Admin. Code such state regulation rights violates its center,” school,” “medical “health science under the Free Exercise Clause. school,” “law law,” “law “school 9, 1997, Leg., Act May center.” 75th
The State regulation contends R.S., Gen. Laws ch. 1997 Tex. “seminary” the term gener is neutral and predomi- “seminary” 1149. If has ally applicable, permissible thus under con- nantly meaning, secular as the Board Smith. I disagree. The State does not tends, Legisla- for the there no reason is determine authority have whether terms, protected ture to add it the list of private postsecondary institu the stat- only repeat as the addition would professes tion that a sincere faith call other secular educational ute’s reference to Smith, itself a “seminary.” See that each word presume institutions. We 888, 110 1595; Hernandez v. Com meaning missioner, the statute has seminary to the statute Legislature added 2136, 104 Requiring L.Ed.2d 766 scope statute to include within the of the religious organizations to to state submit other entities that not covered were regulation in order to call themselves sem State, terms. See 367 S.W.2d Perkins inaries at odds with the Free Exercise (Tex.1963). The inclusion First Clause Amendment “seminary” added institutions *46 United States Constitution. of scope the the statute. The in that argued briefing Board addition, the In has pondered this Court term “seminary” “exclusively the an meaning of before. This Court this word religious” one, appeals and the court of in reasoned Bullock that apparently agreed. 114 at 633. S.W.3d contended, seminary place
The Board v. is a of education citing “[a] Church Bullock, the edu- specifically 104 Tex. 109 117 ... a school for S.W. (1908), min- or seminary priesthood that is a of edu- cation of the “place men for being “place A only departs istry.” seminary cation” and secular from this education,” or meaning adjectives adjectives “theological “theological” when the the “religious” necessarily give or it to placed religious” are in front of for the meaning place meaning specifically take on the of “a of a specifical- place ly ministry, for the the min- preparation preparation men for of men for least, least, istry, teaching or at for the of reli- at for the teaching commonly so In doctrines. The gious postsubmission doctrines.” words briefing, acknowledged Board used. philoso policies and (quoting Eng. 25 Am. & Id. While seminarian
109 S.W.
see,
institutions,
286).
case,
among
differ
Law,
phies
will
Ency.
this Court
Coll.,
626 F.2d
e.g.,
v. Miss.
not hold that it
com-
EEOC
did
was
when
(5th Cir.1980),
Baptist is
Southwestern
“religious”
or “theo-
bined with
words
that semi
recognizes
because it
instructive
“seminary”
that the
took on
logical”
word
to churches
similarly
function
naries often
meaning proposed by
HEB Ministries
congregations.
organized
or other
“Seminary”
in this case. See id.
has a
acknowledges
Tyndale’s pur
connotation,
primarily
when
in
train ministers to work
pose is to
“theological,”
combined
word
Furthermore,
faculty
their
churches.
Tyndale Theological Seminary,
in
it has an
cler
may
be akin to church
members
well
exclusively religious meaning.
gy
providing general
in
edu
addition
relied,
part,
The court of
in
appeals
subjects.
on secular
cational instruction
“seminary” given
the definition of
Court,
conclude,
that the
I
as does
Dictionary:
Black’s
“[a]n
Law
reli-
“seminary”
primarily
admits a
word
institution,
college, academy,
such as a
whether,
consider
gious meaning,
now
other school.” Black’s
Law DictionaRY
Clause,
the Free Exercise
consistent with
(8th ed.2004).
dictionary,
Webster’s
State
dictate
institutions
however, defines the same term as “an
seminaries.
may call themselves
training
institution for the
of candidates
priesthood,
for the
ministry, or rabbinate.”
espoused “a
Court has
spirit
religious organiza-
of freedom for
THIRD
WEBSTER’S
NEW INTERNATIONAL DIC-
TIONARY the Board ac-
Even
tions,
con-
independence
from secular
knowledges
Tyndale’s
purpose
avowed
short, power
manipulation,
trol or
is to train ministers to
work
churches.
themselves, free from state in-
decide for
statute,
In the
usage
context and
of the
terference,
government
matters of church
“seminary”
word
included in the
doctrine.”
as well as those
faith and
statutory
State’s
scheme refers to institu-
v. St. Nicholas Cathedral
Kedroff
education,
that provide religious
tions
in-
Am.,
in N.
Russian Orthodox Church
struction, and training.
143,
678 forbids.” appointment is a canoni- Constitution Hernan
5. “Because
dez,
act,
of the church
at
cal
it is the function
490 U.S.
S.Ct. 2136. This
Bishop
the essential
it cannot do. See
authorities to determine what
Catholic
Chi
a
are and
qualifications
chaplain
cago,
wheth-
at
To decide which institutions secular, desires, religious, the curriculum not, naries and are the Board neces- mixed, “seminary” with- and call itself sarily judgments have to make con- would regulation. submitting out first to state convictions, doctrines, and cerning which in nature and which are faiths Regulation B. of Issuance State Tyndale Because is HEB Ministries’ not. by Religious Degrees ministries, training institution Institution Board would have to consider whether gov Religious mission to beliefs are immune fulfilling school is See Con teachings regulation. if its are suffi- ernment Cantwell ministry necticut, ciently “theological” nature to be semi- motivated
nary. government For the determine L.Ed. Conduct *48 important con religious enjoys beliefs also sincerely professed religious be- whether protection. See Church actually secular is an endeavor stitutional liefs are of Hial Aye, City Lukumi Babalu Inc. v. entanglement “fraught with the sort
679
Verner,
eah,
520, 531-33,
2217,
scrutiny.
v.
374 U.S.
508
113
Sherbert
U.S.
S.Ct.
(1993). However,
398, 402-03,
1790,
L.Ed.2d
Lessons
2004
L. REV.
the constitutional
in that case
BYU
of
(2004); Christopher L.
& Law
Eisgruber
than it did
Sherbert. 494
at 885-
U.S.
Sager,
G.
The Vulnerability
86,
rence
Con
of
110 S.Ct.
members
the
Two
science: The
Basis
Pro
Constitutional
brought
Native American Church
a free
for
Conduct,
L.
tecting Religious
61 U. CHI.
challenge
Oregon
to
crimi
exercise
law
(1994); Douglas Laycock,
1245
For
REV.
nalizing
“knowing
pos
the
or intentional
mal, Substantive,
Disaggregated Neu
and
unless
of a ‘controlled substance’
session
trality
Religion,
Toward
39
DePaul
by a
prescribed
has been
the substance
(1990);
Laycock,
L.Rev. 993
The
Douglas
874, 110
Id. at
S.Ct.
practitioner.”
medical
Supreme
Liberty,
Court
40
Religious
to
STAT.
(referring
1595
ORE. REV.
(2000);
25
Michael W. McCon
Cath. Law.
475.992(4) (1987)).
plaintiffs
The
were
nell, Free Exercise Revisionism and the
ingesting
discharged
jobs
from their
Decision,
Smith
L.Rev. U. Chi.
Or
“controlled
under
peyote, a
substance”
(1990); Michael W. McConnell & Richard
law,
during
egon
purposes
for sacramental
Posner,
A.
An
to Is
Approach
Economic
ceremony. Id.
American Church
a Native
Freedom,
Religious
sues
L.
U. CHI.
uncon
They
Oregon
claimed the
law was
(1989).
REV. 1
In the
case of
seminal
it
them because
applied
stitutional as
Verner,
Supreme
Sherbert v.
the
Court
religion.
with their exercise
interfered
that a
held
substantial burden on the exer
Id.
religious
cise of
to strict
subject
beliefs is
that “first
The
reaffirmed
Court
402-03,
scrutiny.
398,
374 U.S.
83 S.Ct.
means
Free
Clause
foremost” the
Exercise
1790, 10
A
L.Ed.2d 965
member
profess
to believe
whatever
right
“the
Seventh-day
quit
the
Church
Adventist
desires,”
pre-
one
doctrine
employment that
on
required her to work
of re-
regulation
‘governmental
“all
cludes
Saturday sabbath,
her
subse
was
”
877, 110
Id. at
as such.’
ligious
quently
unemployment
denied
benefits for
beliefs
Sherbert,
at
374 U.S.
(quoting
declining
accept S.Ct.
“good
without
cause” to
1790).
employment
required
Distinguishing
other
that also
work
83 S.Ct.
reg-
Saturday.
on
Id.
regulation
at
beliefs
framed
conduct,
Court
the issue as “whether
observed
ulation
Court
compelling
some
enforced
state interest
reli-
held that an individual’s
has “never
eligibility provisions
of the ... statute
compliance
gious beliefs excuse him from
justifies
infringement
substantial
prohibiting
an otherwise valid law
with
appellant’s
right.”
First Amendment
regulate.”
conduct that the State is free
Finding
governmental
Id.
no compelling
878-79,
right of
Id. at
681 Lukumi, that “if the held that neither Court observed S.Ct. 1790. Court infringe upon is to object the of a law the nor the text of Constitution Court religious because their restrict practices precedent require that states allow use of not Id. at motivation, neutral.” the law religious prac- controlled substance as a 533, fa- Although passing 113 2217. S.Ct. 887-88, Id. at 1790. tice. 83 S.Ct. review, in were question cial the laws expressly The Court declined extend the worship neutral Santería was because scrutiny balancing test of the strict Sher ordi- “target” city’s of the “object” or govern analysis generally bert to “the 534-40, S.Ct. 2217. nances. Id. at 113 socially applicable prohibitions of harmful “design” that the Court determined 889-90, Id. at 83 S.Ct. conduct.” 1790. gerry- accomplished religious the laws “a Thus, mander, tar- impermissible attempt the state need not establish a com prac- their get petitioners pelling interest to institute incidental bur (citation 535, tices.” at 113 2217 Id. S.Ct. person’s religious practices, dens on a so omitted). so long through does a neutral and
generally-applicable criminal law that does
Addressing
“general applicability”
the
not otherwise violate the Constitution.
requirement,
the Lukumi
observed
Court
Id.8
“government,
pursuit
legitimate
in
im
interests,
in a
manner
cannot
selective
in
holding
The Court affirmed the
Smith
pose
only
burdens
conduct motivated
Lukumi,
years
520,
three
later
508 U.S.
and that
“is
principle
belief’
this
113
S.Ct.
Lukumi involved set of
rights
protection
essential to the
ordinances
city
prohibited
the reli- guaranteed by the Free
Clause.”
Exercise
gious
sacrifice of
the
animals
Santería
543,
Although
Id. at
113
the
S.Ct. 2217.
religion
imposed
criminal sanctions for
gen
the
Court did not define
standard
525-28,
Id.
their violation.
at
eral
held that
applicability,
Court
general
2217. The Court
“the
reaffirmed
mini
“these
fall well
ordinances
below
that a
proposition
that is neutral and
law
necessary
First
protect
mum standard
of general applicability”
inciden-
arriving at
rights.”
Amendment
Id. In
tally
burdens
practices need not
conclusion, the
this
Court observed
be narrowly
to advance a compel-
tailored
underinclusive
vastly
ordinances were
531-32,
at
ling government interest.
Id.
many
exemptions.
and included
secular
city
This
a Texas
recognized recently, quoting
Court
issued
Education,
competence
accurately presume
a level of
Brown
347 U.S.
483, 493,
(1954),
qualification.
The Office of the General for granting college, regulation e.g., opined the State of Texas has on this — by pri- university, graduate degrees very rights issue: whether under postsecondary vate educational institu- permit Free Exercise Clause a comply tions—it must with state mandates organization to operate degree-awarding a university unnecessarily that are intrusive compliance without state with objectives. prompted by legitimate are Op. Att’y standards. Tex. Gen. No. JC- (2000). Smith, 878-79, Attorney at General John Cor- See 494 U.S. Lee, 1595; nyn application concluded “the to re- scrutiny gov- Baptist theologi- 9. The Southern Convention’s of the strict test for substantial seminary agrees pursuant cal to its con- practices. ernment burdens Tex. education, stitutional interest in the State seq. § et This Civ. Prac. & Rem.Code 110.001 using “forbid institutions from the words required the Su- mimicked the standard etc., degree,’ degree,’ 'bachelor’s 'master's un- Venter, preme Court Sherbert program requirements less certain defined (1963). L.Ed.2d Baptist Brief satisfied.” for Southwestern Although I do not think the result here would Theological Seminary as Amicus Curiae at 14. change applied, the statute is if the statute inapplicable date was after the as its effective Attorney opinion considered General's in this case. accrual of the cause of action jurispru- Court’s free exercise seq. et See Tex. Civ. Prac. & Rem.Code 110.001 required application dence. A Texas statute I that the Constitution contrary disagree would it. A conclusion neath motives, entities, establishing regardless Legislature
allow their bars statutory requirements applicable to circumvent the standards generally guise educational de- religious practices postsecondary under granting issuing degrees supported by little or no question This concerns conduct— grees. meaningful This Tyndale put degree,” educational attainment. “college can whether legitimate objectives explanation it would undermine no disclaimer or with precluding issuance of de- at comply public fraudulent standards does rely grees ensuring society graduation could No top of documents. Board, Tyn- college degree one, including on the attainment of disputes of meaningful postsecondary edu- right evidence and teach dale’s believe whatever cational accomplishment. it chooses and hire it desires whomever do so. Tyndale engaging
Because this case is course, conduct the is free to patently commercial State it Of sounds offensive regulate “de- granting freedoms to assert that the State —the grees,” degrees,” “associate de- barring “bachelor’s Mother Teresa and Reverend grees,” degrees,” “master’s and “doctorate teaching seminary, Billy Graham from degrees,” conclude that 61.804 correct, section if be. But doctrine would —I of the does Education Code not offend instruction are not tantamount Free Exercise States Clause United piece stamping parchment title on a *54 878-79, at Constitution. See id. out at graduation. handed Governments 1595; Lukumi, 581-38, at U.S. teaches, regulate a seminary cannot what S.Ct. teach, hires to or adminis- who it how its These tration is structured. matters The plurality Tyndale concludes that has the con- seminary’s central to beliefs and right college constitutional to issue victions, to one and the freedom believe as degrees graduate without compliance with See chooses is absolute. course, Legislature’s the standards. Of Braunfeld Brown, U.S. S.Ct. Tyndale does not frame its in this case (1961). Typing L.Ed.2d 563 the letters fashion the in because idea this context parchment “Ph.D.” on a is an act that is only that one type postsecondary insti- to beliefs Tyndale’s not inherent tution, a seminary, has an con- unfettered reasons, in engaged or the right put “college stitutional to title pro- should not be accorded constitutional degree” top graduation at of its docu- the religion under the clauses. See tection ments, regard without to compliance with Smith, 877, 110 at standards, public is a In- tenuous notion. it, Legislature The could decide to allow
stead, Tyndale enmeshes its on argument not it. require but the Constitution does this issue with the bedrock principle persuade that be- plurality The strains to regulate the State cannot the doctrinal Tyndale the not allow cause Board does teachings beliefs and of a church’s school. degrees compliance with in confer without Wrapped theological flag, Tyndale’s this statutes, the doc- dictating on it is arguments then focus beliefs seminary. bury may taught be at the appropriate real issue trine Tyndale, be- howev- graduation words title a document I remain unconvinced.11 11. plurality’s rationale is tension with sions. Court's Smith and Lukumi deci
er, is opinions any subject, being responsible correct that it should be able to on use meaningful designations on “official look- privilege; the abuse of that and no law ing paper” convey what believes to shall passed curtailing liberty ever be (See substantial educational achievement. speech State, press.”). III). infra, Section This does not require, contrast, the speech asserts that at issue is concludes, plurality as the creation and, of a speech pursuant commercial to feder- right religious, constitutional but law, al constitutional the State has a sub- non-religious, postsecondary institutions to curtailing prolifera- stantial interest college graduate degrees. issue Al- diploma tion of assuring mills and case, though plural- different from this indicia of educational attainment are accu- ity’s reasoning grant a would constitutional rate, challenged and that the statutes di- right group to a to confer a doc- rectly governmental advance that interest. degree tor of philosophy graduation on a that, HEB if speech contends even parchment providing after hour of in- commercial, issue is the State must still struction. show that the restrictions are nar- speech rowly drawn to serve substantial in-
The Education
broad
Code’s
definition
terest. Tyndale’s contention is that
precludes
the term “degree”
use of
title,
regulation
word,
State’s
appel-
many
to “degree.” Tyndale
words similar
lation, and
terminology
other
asserts that section 61.304 of the Edu-
“equivalent”
degree
suggesting
Code,
cation
the definition of
virtue
study
postsecondary
course of
toward
61.302(1),
“degree”
regulates
virtually
degree
equivalent”
is an
“its
unconstitu-
terminology
all useful
that it
use to
tionally
prohibition
Tyndale’s
broad
convey the educational achievement of its
free-speech rights.
students.
I
Although
believe that
granting
degrees
is conduct the Legisla-
agreed
The court of appeals
may regulate,
ture
the State’s attempt
State that its
of the terms
regulation
“de-
*55
regulate Tyndale’s use of any language
“bachelor,”
gree,” “associate,”
“master,”
suggesting
competing
a similar
level of
“doctor,”
“equivalents” in
and other
sec-
competency
educational
also must be valid
61.302(1)
tions
targets
61.304 and
commer-
under the Free
Clause of
Speech
the First
speech.
cial
Free
expression
transaction or
is
serves
speaker.
HEB
contends
economic
Ministries
interests of
Bd. of
Fox,
469, 473,
scheme
Trs.
regulatory
State’s
violates its
v.
492
109
U.S.
S.Ct.
3028,
(1989);
rights to free
under
106
speech
Bolger
First
L.Ed.2d 388
v.
60,
Youngs Drug
Corp.,
Amendment of the
States Constitu-
Prods.
463
United
U.S.
64,
usurped
2875,
(1983);
tion because the
has
103
469
State
virtual-
S.Ct.
77 L.Ed.2d
ly
reasonably
Corp.
all terms it could
use
Cent. Hudson
& Elec.
v.
Gas
Pub.
Comm’n,
557, 561,
describe the educational achievement of
Serv.
100
447 U.S.
S.Ct.
Const,
2343,
I,
(1980);
students. See
amend.
cl. 3
687
(11th Cir.2002)
(relying upon
informa
1210
advertising’s
is based on
speech
the title
treatment of
function,
equips persons
act Eleventh Circuit’s
tional
which
Gonzalez,
Hudson,
v.
interests.
in Abramson
“psychologist”
in their own best
Cent.
(11th Cir.1992));
562-63,
1567,
100
2343. To
U.S. at
S.Ct.
1574-75
447
949 F.2d
1206,
Hamilton,
“constitu
help
goal,
fulfill this
there is a
F.Supp.2d
334
Potts v.
favoring disclosure
presumption
(E.D.Cal.2004);
tional
v.
1209,
Bingham
1213-15
concealment,”
1234-35,
because “disclosure
Hamilton,
1233,
over
F.Supp.2d
100
truthful,
like
information is more
(all
relevant
(E.D.Cal.2000)
three cases involve
1239
to deci-
positive
to make a
contribution
ly
dentists,
special
who
prohibiting
statutes
of such
sionmaking than is concealment
dentistry and are certified
implant
ize
Attorney Registra
Peel v.
information.”
by the
recognized
by organizations
n,
91,
496 U.S.
Disciplinary
tion &
Comm.'
credentials).
state,
advertising certain
2281,
Restricting an unaccredited institution’s narrowly tailored because statutes ability degrees directly to award advances free to advertise its HEB Ministries is still the State’s interest because services, missions, so qualifications, protected it does not use the
degrees equivalent long indicators of associate, bachelor’s, mas- degree, educational attainment are used em- terms — ter’s, suggest approval doctor’s—that ployers judging training pro- and satisfaction of minimum spective employees, by public pri- by the State *57 that has determining society educational standards professional groups vate The State expect and con- come to of these terms. qualifications for admission to narrowly the are tai- by general argues tinuance of and the also statutes practice, Tyndale could not be fined public assessing competence the lored because for, not from issu- in a of ac- and would persons engaged range prohibited wide or “certifi- example, “diploma” for a general ing, to the wel- necessary tivities terms themselves cate” because these fare. letters, ti- terms, words, or any are signify, purport signify, protected to and do not terms program protected “a to the generally taken mean that are similar not tles bachelor’s, associate, program study leading suggest to an that a any and words equiva- master’s, degree or doctor’s or its or degree or college graduate a leading to lent.” See id. the titled are similar to that any words section The language programs. conveys reading of plain A the statute 61.302(1) for the fines Board’s supports than the prohibition broader a much and “certificate” “diploma” the use of word First, the concedes. under statute fining a basis for unaccredit- provides terms and “degree” protected includes the bachelor’s, “bach- associate, master’s, using phrases the doctor’s ed institutions diploma” “comparable Id. and degree. Generally, definition level elor’s titles protected imper- that for or requires degree.” words statute The an associate’s regulation, they state be de- trigger Tyndale issuing a mas- missibly bars from a de- perceived leading or as scribed or level certificate an associate’s ter’s level associate, bachelor’s, master’s at the gree convey state diploma, terms do or doctorate level. convey degree, of a but do certification accomplishment. education postsecondary Board asserts an institution
The that of the that majority A Court decides pro- certified to any must be use of these schools, they by religious terms because instruction tected themselves are suggest generally terminology understood regulation of educational or recipient completed part indicate that a of de- broad definition under the statute’s of a The program leading degree. all to a gree violates constitutional standards. statutory language indeed extends (In III.C., plural- Section S.W.3d. Second, the broadly. statute also defines any “the re- ity states that use of words word, title, “degree” any desig- to include resembling ordinary education motely nation, letters, series of similar termi- or risky”).13 appellations terms is The nology protected suggest to the terms college understands to indicate public study degree. a state-recognized toward study all be graduate level would statute, extending Further scope protected similar or to the equivalent title,” Legislature “any barred use equivalents.” and “their terms “words,” “mark,” “designation,” “series Tyndale The Board’s concession letters,” “appellation” conveys or on its “diploma” use “certificate” or leading to study degree, any or similar ap- documents state graduation without Id. The posteducational achievement. statute, helpful. 61.302(1) proval is Under language encompasses virtual- cer- “diploma” and “certificate” the words ly every reasonably pro- term that could “titles,” “words,” “appella- or tainly are description vide a useful of educational they protect- are similar to postsecondary at a education- tions” achievement Thus, “degree.” by its terms unap- bans ed term legislation al institutional. “cer- any “diploma” use of
proved programs using statute bars provi- “equivalent disagree on which Dictionary We constitutional 12. Webster's defines import.” significance or alike in as similar infringed. I the deci- would base sions Dictionary rights, and the speech sion on commercial Third New International Webster's Dictionary defines Oxford point decide under plurality would this "equivalent” having equal correspond- Clause. Free Exercise meaning. ing import or The Oxford Illustrat- *58 (2nd ed.1975). Dictionary 283 ed may completion Degree tificate” indicate of all than prog state-certified Bachelor’s program of a to a part leading degree. Fining private institutions for rams.15 However, if even the making legitimate Board’s concession is their comparisons that statute, language correct under the programs are similar to than or better is being the concession not useful programs leading without state-certified to a de tie the “diploma” gree able to terms or “certifi- equip persons does their to act to description recognized Instead, cate” some of a punishes own interests. institu postsecondary or similar level of truthful, edu- tions disclosure of relevant attainment, cational statute pre- likely and the information that a posi is to make making cludes that connection. For exam- tive contribution to making. decision See Tyndale Peel, ple, likely “diploma 108, 110 2281; could issue 496 U.S. at Cent. theological Hudson, 567-68, studies” would not which U.S. at apparent its convey program belief that its 2343. This restriction contradicts comparable purpose to First Amendment’s commer college level course work diplomas speech. cial generally because are issued at high school level. See Moreover, the applicable portions of sec- for Independent Brief Colleges and Uni- 61.302(1) tions operate 61.304 as a ban Texas, versities Inc. as Amicus Curiae only potentially misleading on not speech (explaining at 12-13 is a public that there but also on truthful speech. Tyndale is- perception degree qualifies an indi- diplomas sued and certificates which perform
vidual in their chosen field of good be as as or better than some state- Tyndale If study.)14 “diploma issued a programs, certified and other insti- private studies”, bachelor’s level would tutions, nonreligious, whether accurately convey more its contentions the same complaint legiti- would have program, about its that title would violate comparisons improperly mate are being The statute. Board concedes the use regulation silenced. The is more extensive Tyndale of terms would not allow necessary legiti- than to serve the State’s accurately describe its belief about lev- 61.302(1), mate Tyndale interests. Under quality el or of it programs. Board’s cannot use terms that are similar to does not free speech concession resolve the terms, protected and it describe cannot Tyndale problems raises. as programs similar to or better than programs to a de- state-approved leading 61.302(l)’s prohibitions Section on First gree. impermissibly The statute cuts an expression preclude Amendment further through protected broad swath commercial postsecondary private educational institu- speech. advertising comparisons tions example, state-certified institutions. For stated, previously As the standard for objects Tyndale’s description the Board judging speech restrictions on commercial Diploma of Studies Theological of its is that the restriction be in proportion Fox, ... “stronger typical than the Bachelors in the interest served. description sug-
Biblical Studies.” Such a availability of more gests Tyndale’s program is better limited alternatives that are less restrictive Independent Colleges description Tyndale's 14. The and Universities If the indicated that Texas, nonprofit Inc. is a association of the program theological studies certified was private colleges accredited and univer- State, State's speech false and would be represents majority It sities. legitimate subject regulation. private undergraduate State's institutions.
691
title “doctor”
use of “Ph.D.” or the
for a conclu-
ed
speech
strong support
recog-
does
from an institution
regulation
directly
sion that the
not
unless obtained
state).
measures may
the
Such
goal. Thompson
by
desired
v. nized
advance the
Ctr.,
357, 371,
objective
122
Med.
535 U.S.
the
desired
W. States
achieve
State’s
1497,
L.Ed.2d 563
S.Ct.
useful
accu-
likely
provide
be more
Supreme
analysis indicates that
to the pub-
Court’s
to contribute
rate information
inquire
govern-
courts
whether the
all
banning
should
than
decisionmaking
lic’s
would
ment
its interests in a man-
could achieve
the institution. See
such information from
speech
Ibanez,
ner
is less
that does
restrict
or
at
2084.16
U.S.
speech.
context,
commercial
Id. The
restrictive of
reasonable
present
In the
dis-
inquiry
help
answer to this
will
illuminate
regarding
theological
the
certifi-
claimers
directly
regulation
whether the
advances
cates and
could serve
better
diplomas
governmental
interest and is more ex-
Tyndale’s
inform the
students’
public
necessary
tensive
to serve that inter-
than
than
would
educational achievements
(noting
est. Id. at
possibility that some limited supplementa- Accordingly, I would reverse court tion, by way warning or disclaimer or appeals judgment and vacate fines like, might required” rather than a Higher The Texas Education assessed Bates, speech. ban on commercial HEB Coordinating against Minis- 2691; see, Peel, at e.g., U.S. tries. at 2281 (providing examples); similar Hud- disclosure Cent.
son,
(hold-
ing the interest could be state’s addressed descriptive including accurate informa- banning
tion the speech); rather than
Strang, (holding at 510 F.Supp.
same to statute that respect prohibit- adopted this Some states have scheme e.g., Fla. See, ments are met. Stat. 1005.06(f)(3); allow unaccredited institutions to § 11- Educ. Md.Code grant degrees require- if certain disclosure 202(c)(2). to ours. notes (determining (plurality op.) with), Tennessee spectfully disagrees colleges state contacts between upheld regula- Supreme Court broad state administering program aid purposes only of a religious tion school that issued any entangling more likely “are not be degrees. State v. Clarksville inspections and incident to than the audits Theology, School S.W.2d process of the accredi- colleges’ the normal (Tenn.1982). in- reasoning State”). The court’s is con- plurality tations special provision structive: no is “[t]here tends instruction, nei- places Tennessee [The statute] discretion treat such given no upon ther a direct nor indirect burden differently than edu- education secular religion free the de- exercise of it cation, no given it has indication an entanglement fendants threatens nor if to do so it could.” willing would between the affairs church statute, as well at 648. But S.W.3d does regulate state.... Act [T]he accompanying Coordinating Board’s beliefs, practices teachings in- permit religious regulations, expressly institution; merely mini- sets forth meeting to be certified without stitutions mum met standards which must be for accredita- qualifications the standard