Judges: JIM MATTOX, Attorney General of Texas
Filed Date: 9/6/1985
Status: Precedential
Modified Date: 7/6/2016
Mr. Kenneth H. Ashworth Commissioner Coordinating Board Texas College University System P.O. Box 12788 Austin, Texas 78711
Re: Whether a state institution of higher education may appoint to a faculty teaching position an individual who is nominated and salaried by a religious denomination
Dear Mr. Ashworth:
You ask whether a state institution of higher education may constitutionally appoint individuals who are nominated and salaried by 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 denominations, you ask whether the institution may deny appointment to similarly qualified nominees of any other religious denomination. Your questions require this office to consider the scope of the clause of the
Bible chairs are teaching positions maintained by religious 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 chairs. They also own and maintain the off-campus facilities in which religion classes are taught. Although some public institutions do not have Bible chairs associated with them, those that do, permit students to apply from six to twelve semester credit hours in religion courses as electives toward their degrees.
The university's proposal, 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 address your questions in the context of the information you submitted to us, i.e. whether or not a state university may appoint individuals who are 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 salaried 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 chairs 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 constitutionality of both the method of appointment and the funding for the proposed religious studies faculty concerns you.
As indicated, the
Analysis of the Establishment 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 government activity must, first, 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. Kurtzman,
The study in public schools 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 Clause. School District of Abington v. Schempp,
In Wiley v. Franklin,
With regard to the funding of Bible courses, both courts held that the school system was not prohibited by the Establishment Clause from accepting private contributions to fund the teachers' salaries and other expenses of the courses, but that such contributions must be made with "no strings attached."
As will be shown in the discussion to follow, the two procedures at issue here, nominations by and salaries from religious denominations for university faculty, do not hold up under the rulings in these cases and in recent Supreme Court cases with regard to the excessive entanglement test. 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,
In Aguilar v. Felton the Supreme Court relied upon the excessive entanglement criterion of the Lemon test and stated that
[e]ven where state aid to parochial institutions does not have the primary effect of advancing religion, the provision of such aid may nonetheless violate the Establishment Clause owing to the nature of the interaction 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 obverse situation in which religiously funded professors will teach official 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,
Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any — or all — religious denominations 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.W. 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 involve an excessive entanglement 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 academic credit, but it must structure the selection of teachers for such courses in a manner which does not differ from the way in which it selects the teachers for all of its other academic courses. The university is not prohibited by the Establishment Clause from accepting private donations to fund such courses, i.e. by accepting funding to set up a "Bible Chair"; however, the donors may not be permitted to exercise control or influence over religious studies courses or professors.
Very truly yours,
Jim Mattox Attorney General of Texas
Tom Green First Assistant Attorney General
David R. Richards Executive Assistant Attorney General
Robert Gray Special Assistant Attorney General
Rick Gilpin Chairman, Opinion Committee
Prepared by Jennifer Riggs Assistant Attorney General
Rufus O. Hall v. Board of School Commissioners of Conecuh ... , 656 F.2d 999 ( 1981 )
Hunt v. McNair , 93 S. Ct. 2868 ( 1973 )
Committee for Public Education & Religious Liberty v. ... , 93 S. Ct. 2955 ( 1973 )
Widmar v. Vincent , 102 S. Ct. 269 ( 1981 )
Abington School Dist. v. Schempp , 83 S. Ct. 1560 ( 1963 )
Roemer v. Board of Public Works of Md. , 96 S. Ct. 2337 ( 1976 )
Lemon v. Kurtzman , 91 S. Ct. 2105 ( 1971 )
Tilton v. Richardson , 91 S. Ct. 2091 ( 1971 )
Wallace v. Jaffree , 105 S. Ct. 2479 ( 1985 )
Estate of Thornton v. Caldor, Inc. , 105 S. Ct. 2914 ( 1985 )
School District of Grand Rapids v. Ball , 105 S. Ct. 3216 ( 1985 )
Aguilar v. Felton , 105 S. Ct. 3232 ( 1985 )
Wiley Ex Rel. Wiley v. Franklin , 497 F. Supp. 390 ( 1980 )
Wiley Ex Rel. Wiley v. Franklin , 468 F. Supp. 133 ( 1979 )
Wiley Ex Rel. Wiley v. Franklin , 474 F. Supp. 525 ( 1979 )