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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




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    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




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