Case Information

*1 The Attorney General of Texas September 6, 1985 JIM MATTOX

Attorney General I4r. Kenneth H. Aahworth Opinion No. J&352 Supreme Court Sullding Coeardssioner P. 0. BOX 12548 Coordinatinn Board Re: Whether a state institution Austin, TX. 7871% 2548 5121475-2501 Texas Collage & University System, of higher education may appoint Telex Q101874-1367 P. 0. Box 12788 to a faculty teaching position Telecopier 512/4750266 Austin, Texas 78711 an individual who is nominated

and salaried by a religious 714 Jackson, Suite 700 Dallas, TX. 75202-4508 ^{[21417428944]} Dear Mr. Ashworth: denomination

You ask whetler s state Institution of higher education may 4624 Alberta Ave., Suite 180 constitutionally appoint individuals who are nominated and salaried by El Paso, TX. 79905.2793 915E.353484 a religious denomination to a faculty position to teach religious studies courses. If' the answer to this question is affirmative, and the institution appoints the nominee of one or more religious 1001 Texas, Suite 700 denominations, you ask whether the institution may deny appointment to Houston, TX. 77002-3111 similarly qualifiell nominees of any other religious denomination. 713223.5886 Your questions require this office to consider the scope of the clause of the First Amendment to the United States Constitution which 805 Broadway. Suite 312 declares that "Cong;ress shall make no law respecting an establishment Lubbock. TX. 79401.3479 of religion or px,ohibiting the free exercise thereof" and which 8061747-5238 applies to the stat,as by virtue of the Fourteenth Amendment. Wallace

v. Jaffree, 105 S.Ct. 2479 (1985). 4303 N. Tenth. Suite S McAllen. TX. 78501-1685 Your letter indicates that North Texas State University initially 5121682.4547 requested authorization from the Coordinating Board of the Texas

College and University System to transform the university's philosophy 200 Main Plaza, Suite 400 San Antonio, TX. 78205.2797 ^{[51212254191]} would consist of present philosophy department's faculty and of the department into a department of philosophy and religious studies which the holders of thg! six Bible chairs at the university. You state

that, at present, An Equal OppOrtunityI Bible chairs are teaching poslt<ons maintained Affirmative Action Employer by religl.c#us organizations to provide courses on

religion for university and college students. The religious organizations appoint and pay the salaries of the ministers or rabbis who occupy Bible ch,%:lrs. They also own and maintain the off-campus facilities in vhich religion classes are taught. Although some public institut%ons do *2 Mr. Kenneth 8. Ashworth - Page 2 (JM-352)

not have Bible cha:lrs associated with them, those that do, permit students to apply from six to twelve semester cr,edit hours in religion courses as electives toward their degrees.

The university's propoeal, which you submitted with your request,' indicates that only religious organizations would submit nominations for the new faculty positions to a university screening committee. These positions would also be funded by religious organizations. Accordingly, we will addreirs your questions in the context of the information you submItted to us, i.e. whether or not a state university may appoint individuals who= nominated or salaried by a religious denomination, regardless of whether the nomination is conclusive.

It has been suggested that this type of position Is merely "non- stipendary" rather than sa:laried by religious denominations. As a practical matter, however, either the religious denominations will continue to pay the salaries of the teachers who would, under the prior system, hold Bible che,irs or the university must find teachers willing to serve without pay. Further, you expressly ask whether such positions may be salaried by religious organizations. The constitu- tionality of both the methc#d of appointment and the funding for the proposed religious studies faculty concerns you.

As indicated, the First Amendment to the Constitution of the United States forbids laws "respecting an establishment of religion. or prohibiting the free exercise thereof." The United States Supreme Court consistently interprets the First Amendment, as applied to the states bv the Fourteenth Amendment. to reauire that the states assume a position of neutrality with regard to religion. Wallace, 105 S.Ct. 2479; Committee for Public Education v. Nyquist, 413 U.S. 756, 773 (1973); School District of -Abington v. Schempp, 374 U.S. 203, 216 (1963). Your request requ&s applFcation of the EstablFshment Clause portion of this provision. The Establishment Clause proscribes sponsorship, financial supI,art. and the active involvement of the government in religious sctivity. Grand Rapids School District v. Ball, 105 S.Ct. at ; 53 U.S.L.W. at

83-990).

Analysis of the EstablL~shment Clause must include consideration of the three basic criteria developed over the years by the Supreme Court. Id. at 5008. To pass muster under this clause the law or governmenZ%tivity must, fjrst, reflect a clearly secular government purpose; second, have a primary effect which neither advances nor inhibits religion; and third., avoid excessive government entanglement with religion. Lemon v. Ku~ctsman. 403 U.S. 602. 612-13 (1971). The -- United States Supreme Court reaffirmed the viability of this

three-part test in several recant cases. See, e.g., Grand Rapids *3 Mr. Kenneth II. Ashworth - Pege 3 (JM-352)

School District v. Ball, 105 S.Ct. 3216; Aguilar v. Pelton, 105 S.Ct. 3232 (1985); 53 U.S.L.W. 51113 (U.S. Jun. 25, 1985) (No. 84-237); Estate of Thornton v. Cal~dor. 105 S.Ct. 2914 (1985); Wallace v. Jaffree, 105 S.Ct. 2479. A1;=11 be seen in the discussion to follow, the second and third of these criteria are the most plainly implicated in this case.

The study in public sechools of the Bible specifically or of religion generally for literary or historic qualities as part of a secular program of education may be effected in a manner consistent with the Establishment Cl.emse. School District of Abington v. Schempp, 374 U.S. at 225. Such courses, however, may not be taught in a manner which advances relllgion; they must focus on the nonsectarian aspects of religious history and writings. Rsll v. Board of School Commissioners of Conecuh Co?*, 656 F.2d 999. 1002 (5th Cir. 1981); see also Americans United for Separation of Church and State v. School District of Grand Rapids, ;?8 S.Ct. 3216; Crockett v. Sorenson, 568 F. Supp. 1422 (W.D. Va. 1983); --

Wiley v. Franklin, 468 F. Supp. 133 (E.D. Term. 1979). Institutions of h%gher education stand on somewhat different footing from lower division schools because college students are presumed to be less impressionable and less suc'ceptible to religious indoctrination than are elementary and aecondarr students. See Tilton v. Richardson. 403 U.S. 672. 685-86 (1971). <Although university classes may involve discussion of the tenets of various religions more deeply than lower division schools, a state institution may not allow teachers of religious studies to proselytize in classes which are officially offered or sponsored by the university. Thus, despite the fact that the Establishment Clause clearly applies to religious studies courses at state institutions of h:tl;her education, offering such courses 5s not prohibited per se. We note, however, that even if a course is planned with a secular purpose, the ultimate test of whether It impermissibly advances rr.ligion depends upon actual classroom performance. See Hall v. Board of School Commissioners of Conacuh County, 656 F.2dat 1002; Wiley v. Franklin, 474 F. Supp. 525, 531 .- (E.D. Tenn. 1979).

In Wiley v. Franklin, 468 F. Supp. 133 (E.D. Term. 1979). the court dealt with a course of Bible study wh%ch was sponsored by city and county elementary schools. The court held that the use of a Bible study comwlttee which, independent of school officials. established the Bible study curriculum and prescribed the selection, training, and supervision of Rible teachers, constituted an excessive entanglement in violation of the third prong of the Lemon v. Kurteman test. The court in Crockett V. Sorencron, 568 P. Supp. 1422, came to the same conclusion in a similar faZa1 setting. The courts in both cases required the school system to establish a plan under which school officials would -- without participation by any nonschool person or organization -- select, employ. train, and supervise all Bible *4 Mr. Kenneth R. Ashworth - Page 4 (JM-352)

teachers. Wiley, 468 F. Supp. at 151; Crockett, 568 F. Supp. at 1430-31; see also Wiley v. Franklin, 497 F. Supp. 390 (E.D. Term. 1980); Wiley v. Franklin, 47$ F. Supp. 525 (E. D. Term. 1979). Both courts emphasized that the qualifications for Bible teachers must be virtually- identical to those applicable to other public school teachers. 474 F. Supp. at 5:!8; 568 F. Supp. at 1431. The Crockett v. Sorenson court further emphnlaized that no Inquiry of the teacher's beliefs should be made. 568 I'. Supp. at 1431.

With regard to the fuu,ding of Bible courses, both courts held that the school system was not prohibited by the Establishment Clause from accepting private cont:cibutions to fund the teachers' salaries and other expenses of the courses, but that such contributions must be made with "no strings attach&." 468 F. Supp. at 152; 568 F. Supp. at 1431. The private donors were not to be allowed to exercise control or even Influence over the Bible teachers or over the Bible courses. 468 F. Supp. at 152. A prolztcdure, such as the one in question here, where the only salary a teacher could receive comes from a religious organization involves a certain degree of influence both over the availability of teachers an,1 over the teachers who actually receive funding from religious organlxations.

As will be shown in tha, discussion to follow, the two procedures at issue here, nominatlms by and salaries from religious denominations for university :Eaculty, do not hold up under the rulings in these cases and in recent Supreme Court cases with regard to the excessive entanglement tes't. Although institutions of higher education must receive somewhat different treatment than the lower division schools with which these cases dealt, the Establishment Clause clearly applies to universities. See Widmar v. Vincent, 454 U.S. 263 (1981); Tilton v. RichardsonTsupra. In Tilton v. Richardson, the Supreme c0u1.T upheld one-time, single-purpose federal construction grants for acade!sic facilities at private institutions of higher education, including church-related institutions. With regard to the excessive entang1emer.t question , the court emphasized that the status of an institution as nne of higher education reduces the risk of entanglement because less intensive government supervision is needed to determine whethr:r religion actually permeates areas of secular education. Tilton v. Richardson, 403 U.S. at 687. The "non-ideological" governmsn~ grants did not involve "any intimate continuing - relationship ‘II -dependency between goveriment and religiously-affiliated instj.tutions." Id. The Court recognized that supervision of teachers requires more government involvement and hence involves a greater potent&I!, for excessive entanglement. Id.; see Lemon v. Kurtzman. 403 U.S. at 619: see also Roemer V. Board ofPub= iibrks of Maryland, 426 U.S. 736 (19-t v. HcNair, 413 U.S. 734 (1973). 1 4 system whereby university faculty 1 members are either nominated or salaried by re:l:lgious organizations Involves the type of *5 Mr. Kenneth R. Ashworth - Page 5 (JM-352)

intimate continuing relationchip between government and religion which is prohibited by the Eatablirrhnent Clause.

In Aguilar v. Pelton the Supreme Court relied upon the excessive entanglement criterion of the Lemon test and stated that

[e]ven vhere state aid to parochial institution8 does not have the primary effect of advancing religion, the provision of such aid nay nonethe- less violate the Ewablishnent Clause owing to the nature of the intc:raction of church and state in the administration of that aid.

105 S.Ct. at ; 53 U.S.L.W. at 5015 (U.S. Jun. 25, 1985) (No. 84-237). In Aguilar, publicly funded instructors taught classes composed of private school students in private school buildings. The case at hand presents an obvwse situation in which religiously funded professors will teach offic!.al university classes composed of public university students.

Moreover, the second criterion of Lemon v. Kurtzman. prohibiting the advancement of religion, is also implicated in this case because of the strong potential for and the appearance of advancing or endorsing religion. See Americans United for Separation of Church and --- State v. School District of Grand Rapids, 718 F.2d at 1399; Rall v.

Board of School Commissioners of Conecuh County, 656 F.2d at 1002. Presumably, the "nominations' of individuals for faculty positions by religious- denominations will carry some weight. and if such "nominationsn do influence zhe selection process, the effect of the selection process is to favor or endorse religion in general and the nominating religious denomiration in specific. As the Supreme Court stated in Grand Rapids:

Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any -- or all -- religious denosinations as when it attempts to inculcate specific. religious doctrines. If this identification conveys a message of government endorsement or disapproval of religion, a core purpose of the Establishment Clause is violated. ; 53 U.S.L,bI. 5006, 5010 (U.S. Jun. 25, 1985) (NO.

105 U.S. at 83-990). -

For these reasons, we conclude that the Establishment Clause prohibits a state university from appointing individuals who are nominated by or funded by a religious denomination to a university faculty position to teach religious studies courses. These processes *6 Mr. Kenneth 8. Ashworth - Pa,ge 6 (JM-352)

involve an excessive entangl.ement between the university and religion. They also involve the potential for and the appearance of advancing, endorsing, or favoring religion. The university may certainly offer courses on religion for aca~demic credit, but it must structure the selection of teachers for such courses in a manner which does not differ from the way in whic:h. it selects the teachers for all of its other academic courses. lhe university is not prohibited by the Establishment Clause from a~xepting private donations to fund such courses, i.e. by accepting i'unding to set up a "Bible Chair"; however, the donorsmay not be permitted to exercise control or influence over religious studies courses or professors.

SUMMARY The Estab1ishmc:r.t Clause of the First Amendment to the United States Constitution, as applied to the states throqh the Fourteenth Amendment, prohibits a state :institution of higher education from appointing individuals who are either nominated or salaried by a religious organization to a universitl~ faculty position to teach religious studies courses. These processes involve excessive: entanglement between the university and re:L:tgion and involve the potential for and the appearance of advancing, endorsing, or favoring religion.

JIM MATTOX Attorney General of Texas TOM GREEN

First Assistant Attorney Gereral

DAVID R. RICIIARDS

Executive Assistant Attorney. General

ROBERT GRAY

Special Assistant Attorney General

RICK GILPIN

Chairman, Opinion Covauittee

Prepared by Jennifer Riggs

Assistant Attorney General

Mr. Kenneth 8. Ashworth - Pagtr 7 (JM-352)

APPROVED:

OPINION COMMITTEE

Rick Gilpin. Chairman

Susan Garrison

Tony Guillory

Jim Noellinger

Jennifer Riggs

Nancy Sutton

Sarah Woelk