Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MATTOX September 6, 1985
Attorney General
Supreme Court Sullding I4r.Kenneth H. Aahworth Opinion No. J&352
P. 0. BOX 12548 Coeardssioner
Austin, TX. 7871% 2548 Coordinatinn Board Re: Whether a state institution
5121475-2501
Texas Collage & University System, of higher education may appoint
Telex Q101874-1367
Telecopier 512/4750266
P. 0. Box 12788 to a faculty teaching position
Austin, Texas 78711 an individual who is nominated
and salaried by a religious
714 Jackson, Suite 700 denomination
Dallas, TX. 75202-4508
21417428944
Dear Mr. Ashworth:
4624 Alberta Ave., Suite 180 You ask whetler s state Institution of higher education may
El Paso, TX. 79905.2793 constitutionally appoint individuals who are nominated and salaried by
915E.353484
a religious denomination to a faculty position to teach religious
studies courses. If' the answer to this question is affirmative, and
1001 Texas, Suite 700 the institution appoints the nominee of one or more religious
Houston, TX. 77002-3111 denominations, you ask whether the institution may deny appointment to
713223.5886 similarly qualifiell nominees of any other religious denomination.
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
Lubbock. TX. 79401.3479
declares that "Cong;ressshall make no law respecting an establishment
8061747-5238 of religion or px,ohibiting the free exercise thereof" and which
applies to the stat,asby virtue of the Fourteenth Amendment. Wallace
v. Jaffree, 105 S. Ct. 2479 (1985).
4303 N. Tenth. Suite S
McAllen. TX. 78501-1685
5121682.4547 Your letter indicates that North Texas State University initially
requested authorization from the Coordinating Board of the Texas
College and University System to transform the university's philosophy
200 Main Plaza, Suite 400 department into a department of philosophy and religious studies which
San Antonio, TX. 78205.2797
would consist of the present philosophy department's faculty and of
51212254191
the holders of thg! six Bible chairs at the university. You state
that, at present,
An Equal OppOrtunityI
Affirmative Action Employer Bible chairs are teaching poslt105 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~shmentClause 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
p. 1606
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'ceptibleto religious indoctrination than
are elementary and aecondarr students. See Tilton v. Richardson. 403
U.S. 672. 685-86 (1971). 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
p. 1607
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:cibutionsto 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.Tupheld one-time, single-purpose federal
construction grants for acade!sicfacilities at private institutions of
higher education, including church-related institutions. With regard
to the excessive entang1emer.tquestion, 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). 14 system whereby university faculty1 members are either
nominated or salaried by re:l:lgious organizations Involves the type of
p. 1608
Mr. Kenneth R. Ashworth - Page 5 (JM-352)
intimate continuing relationchip between government and religion which
is prohibited by the EatablirrhnentClause.
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:ractionof 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!.aluniversity 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
See Americans United for Separation of Church and
endorsing religion. ---
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.
105 U.S. at ; 53 U.S.L,bI. 5006, 5010 (U.S. Jun. 25, 1985) (NO.
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
p. 1609
Mr. Kenneth 8. Ashworth - Pa,ge6 (JM-352)
involve an excessive entangl.ementbetween 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'undingto 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 :institutionof 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:tgionand 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
p. 1610
Mr. Kenneth 8. Ashworth - Pagtr7 (JM-352)
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Susan Garrison
Tony Guillory
Jim Noellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1611