Untitled Texas Attorney General Opinion ( 1974 )


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    TRE       A’ITOIZNEY   GENERAL
    OF TEXAS
    AUSTIN.      TIcsAs        rsrll          *
    January       9, 1974
    The Honorable Bevington Reed                         Opinion No: H-203
    Commissioner
    Coordinating Board                                   Re:    Wheth& church-related
    Texas College 81 University System                          educational institutions
    P. 0. Box 12788, Capitol Station                            participating in the Tuition
    Austin, Texas 78711                                         Equalization Grrnt Program
    are prohibited from limiting
    employment to those of a
    particular religion
    Dear .br.   Reed:
    You have mquested our opinion on the question:
    “[W]hether.   . . church-related educational
    inetititions participating in the Tuition Equali-
    tation Grants Programs are prohibited from                 :
    using employment practices which require
    adherence to a particular religion. ”
    It ir asked against a factual background identifying an institution of
    higher education, whose bylaws state, in their preamble:
    “[The College] shall stand as a witness for Jesus
    Christ expressed directly through its administration,
    faculty und students.   To assure the perpetuation
    of these basic concepts of its founders it is resolved
    that all those who become associated with [the college]
    as a trustee, officer, member of the faculty or of
    the staff must believe in the divine inspiration of the
    Bible, both the Old Testament and New Testament,
    that man was directly created by God, the virgin
    birth of Jesus Christ, our Lord and Saviour as the
    p    955
    .
    .      .
    .
    The Honorable Bevington Reed, page 2 (H-203)
    Son of God, that He died for the sins of all men
    and thereafter arose from the grave, that by repentance
    and the acceptance of and belief in Him, by the grace
    of God, the individual is saved from eternal damnation
    lud receives eternal life in tbe presence of God; and it
    is further resolved that the ultimate teachings in this
    college ehall liwaya be consistent with the above prin-
    ciples. ‘I
    The College, has refused to hire a person of the Jewish faith for
    a staff position solely because of the applicant’s religion. She ‘was inftirmed
    this was its established policy.
    Subchapter F of chapter 61, Texas Education Code (formerly Article
    265411, V. T. C.S. ), authorizes the Coordinating Board, Texas College and
    University System, to provide tuition equalization grants from appropriated
    funds to Texas residents enrolled in approved Texas colleges or universities
    under certain circumstances.     (See Acts 1973. 63rd Leg., ‘p. 78, ch. ,51);. ’
    Section 61.229 of me Code now provides in its subsection (b):
    “The coordinating board shall mahe such
    regulations as may be necessary to comply with
    the provisions of Article I, Section 7 . . . and
    other parts of the Texas Constitution.”
    Article   1. g7, of ~theConstitution provides:
    “No money &all be appropriated, or drawn
    from the Treasury for the benefit of any sect, or
    religious society, theological or religious seminary;
    nor shall property belonging to the State be appropriated
    for any such-purposes. ‘I
    In Attorney General Letter Advisory No. 47 (1973). addressed to the
    Chairman of the Senate Committee on Finance, we reviewed the constitutionality
    ui kricie   265,4h as it related to separation of chiwch and state and of the
    proposed Appropriatioar Act provision implementing it. We said:
    Q. 956
    The Honorable Bevlngton Reed, page 3 (H-203)
    “We are of the opinion &at Article 265421.and the
    appropriation of funds for that program, reflect a proper
    secular legislrtive purpose and are constitutional, so
    long as the Coordinating Board under its regulations,
    ldmia isb r the
    s program so as to avoid the advancement
    or inhfbftion of religim and so as to avoid thejse of pub-
    lic funds or property for the benefit of sects, religious
    societies, or tfieological or religious seminaries,   in turn
    avoiding ‘excessive entanglements, ’ ”
    In arriving at that conclusion we remarked:
    “We have not been asked to pass upon, axI do not
    pass upon, the constitutionality of any particular grants
    to specific individuals attending particular schools.  Indeed,
    &at fact finding process ir beyond both the scope of your
    request and the competence of thio office.    The courts have
    reviewed, in passing upon these questions, the precise
    nature of the schools and programs involved, the precise
    percentage of public funds going to denominational schools,
    and a host of other factual matters which canonly properly
    be determined by an administrative body or a court. ”
    Your present request presents certain facts to be true, Fd our ansyer
    here is so Iimited.  This office cannot resolve factual disputes, and our
    opinion regarding the law applicable to a given set of facts should not be
    considered a finding that ouch facts exist
    Subsequent to the issuance of Letter Advisory No. 47, pursuant to a
    request by the Secretary of the Coordinating Board. we issued Attorney
    Gensral Opinion H-66 (1973) which again reviewed the constitutionality of
    Tuition Equaliution Grants in the light of recent opiniow by the Supreme
    Court of the United States.  We reaffirmed the conclusion reached by LA
    No. 47 and said:
    ffArtlcle  1, )7 of the Texas Conrtltutlon is more
    restrictive   than the federal charter . . . and will not
    p. 957
    The Honorable Bevlngton Reed, page 4 (H-203)
    tolerate, in our opinion, any aid to sects or sectarian
    schools.   Denominational schools are not necessarily
    sectarian in that sense, and some schools ‘with sectarian
    progrems may be able to effectively separate their
    secular programs from the sectarian remainder so that
    the use of funds for the one does not have the effect of
    subsidizing or furthering the other.   The dividing lines
    are delicate but must be sharply drawn so that public
    funds are not put to sectarian uses. ”
    In considering the meaning to be given the term “sectarian scho01s~’
    in the constitutional sense, we quoted from language in Church v. Bullock,
    
    100 S.W. 1025
    (Tex. Civ. App., 1907, lff’d 109 S. W. ll5):
    “‘Inviewofthe..      . constitutional provisions,
    we conclude that the words used. . . must have been
    intended by the people who ratified them to provide
    against the promulgation or teaching of the distinctive
    doctrines. creeds or tenets of any particular Christian
    or Mher religious sect in schools or institutions where
    such instruction was to be paid for out of the public fund,
    or aided by such fuuds or by public grants. , . . I I’
    Speaking of the responsibility of the Coordinating Board to promulgate
    rules and regulations for the implementation of the Tuition Equalization    “’
    Grant program, we said in H-66:
    “Rules should be so framed that institutions
    ’ having the characteristics attributed to [schools with
    which recent U. S. Supreme Court decisions were
    concerned) will not be the beneficiary of Tuition
    Equaliaation Grants.    Individual recipients should
    not include those, for instance, attending seminaries
    or divinity schools, nor shouldtuition paid from pub-
    lic funds for a student be in anywise comingled with
    funds used to defray the cost, expense or bpkeep of
    sectarian programs or facilities.    Mere church
    sponsorship of an institution would not seem by itself
    Q.   958
    The Honorable Bevington Reed, page 5 (H-203)
    to be ground for disqualification, but every possi-
    bility of a grant having more than an indirect or
    incidentof effect upon the advancement of religion
    mad be eliminated. ”
    In Committee for Public Education and Religious Liberty v. Nvquist,
    U.S.     (1973). and in Levitt v. Committee for Public Education and
    Gigiouaiberty,       -Il.  S. -(1973),  ~&heSupreme Court of the United States
    struck down a program of aid to private schools described in H-66 as one
    where:
    “[G]ualifying institutions . . . ‘could be’ ones which
    [I] imposed religious restrictions on admission, [2]
    5required attendance     at religious services, [3] required
    obedience to the doctrinem and dogmas of a particular
    faith. [4] required students to attend instruction in the
    theology or doctrine of a particular faith, [5] were an
    integral part of the religious mission of the church
    sponsoring it, [6] had as a purpose the inculcation of
    religiour ,wlues, [7] imposed religious restrictions ‘, ]
    of fkculhr apDoihtments. and [8] imposed restrictions
    on what or how the faculty may teach. ” (emphasis added)
    ‘V
    It is not neceeeary,   in our opinion, ,,that & these elements be present
    in order to render an institution “sectarian” under either the federal or the
    state Constitution.   It is enough under the Texas constitutional prohibition
    against use of public funds that an institution requires obedience to the dogmas
    of a particular faith on the part of its staff nysmbers and refuses to have a
    pamon as a staff member became of that pason’s          religiour belief.
    In our opinion, discrimination among staff members on the basis of
    religious affiliation or religious views, in policy or in practice. is very
    strong evidence that the institution is sectarian and that funds channeled
    through it would be used to promote or inhibit religion.
    In answer to your inquiry therefore; it ii our opinion that the Coordi-
    nating Board would abuse the discretion vested in it by $61.229(b),   Texas
    Education Code, if it approved participation in the Tuition Equalization Grant
    Q. 959
    -.      .
    .
    The Honorable   Bevington Reed, page 6 (H-203)
    program by an institution which, in the factual context presented to us,
    follows a policy or practice of refusing to hire non-Christians for staff
    positions solely because of their religion.  See Attorney General Letter
    Advisory No. 47 (1973), ~Attomey General opinion H-66 (1973).
    /
    SUMMARY
    Where an institution of higher education requires
    as an establirhed fixed policy that all of its trustees,
    officers, faculty and staff members acknowledge belief
    in and adhere to particular and detailed rd,ligious doc-
    trines and refuses to hire a person as a staff member
    because of the person’s religious beliefs, it would be
    an abuse of discretion for the Coordinating Board, Texas
    College and University System, to find the institution
    qualified to participate in the Tuition Equalization Grant
    program a8, a non-sectarian institution.
    Very truly yours,
    v    Attorney General    of Texas
    DAVID M. KENDALL.       Chairman
    Opinion Committee
    p. 960
    

Document Info

Docket Number: H-203

Judges: John Hill

Filed Date: 7/2/1974

Precedential Status: Precedential

Modified Date: 2/18/2017