           THE       ATTORNEY               GENERAL
                          OF    TEXAS

                      Awsrr~~.. TEXASB 18711
                             July 18, 1973



Honorable Ray A. Fowler                      Opinion No. H- 66
Secretary of the Board
Coordinating Board                           Re:     Constitutionality of
Texas College and University System                  Tuition Equalization
P. 0. Box 12788. Capitol System                      Grants
Austin, Texas 78711

Dear Mr.   Fowler:

       On behalf of the Coordinating Board, you have asked our opinion
as to the constitutionality of Tuition Equalization Grants (Article 2654h,
Vernon’s Texas Civil Statutes) in light of the decisions on June 25. 1973.
by the United States Supreme Court-of the cases of Committee for.Public
Education and Religious Liberty v. Nyquist (hereafter referred to merely
as Nyquist); Sloan v. Lemon (hereafter Sloan); Levitt v. Committee for
Public Education & Religious Liberty (hxter         Levitt); and Hunt v.McNair
(hereafter Hunt).

       On May 24, 1973, at the request of the Senates Committee on Finance,
we issued our Letter Advisory No. 47 with reference to then proposed
appropriations for the Tuition Equalization Grants.     In that letter we noted
the three tests applied by the United States Supreme Court in judging the
constitutionality of programs designed to aid private education: (1) Does
the legislation have a “secular legislative purpose;” (2) Does its primary
effect ,either advance or inhibit religion; and (3) Does it foster an excessive
governmental entanglement with religion.

       We expressed the opinion in that letter advisory that Article @54h,
V. T. C. S., was not “on its face” unconstitutional under the Constitution
of the United States or of Texas, the latter being the more stringent of the
tW0.   Our letter concluded:

                  “We are of the opinion that Article 265411, and
            the appropriation of funds for that program, reflect




                                  p. ,282
Honorable Ray A. Fowler,    page 2 (H-66)




            a proper secular legislative purpose and are
            constitutional, so long as the Coordinating, Board
            under its regulations , administers. the program
            so as to avoid the advancement or inhibition of
            religion and so as to avoid the use of public funds
            or property for the benefit of sects, religious
            eocieties, or theorlogical or religious seminaries,
            in turn avoiding ‘excessive entanglements. ’ ‘I

We urged caution because of the cases before the U. S. Supreme Court
which were later decided on June 25, 1973. A review of them follows.

       Nyquist involved three programs adopted in New York to aid private
education. One provided direct grants to non-public schools for the main-
t&ance of school facilities “to ensure thehealth, welfare and safety of en-
rolled pupils. I1 The sewnd provided for tuition reimbursement to parents
of children attending nonpublic schools, although there was no limitation
on the use of the funds. The third program provided tax relief to those who
failed to qualify for tuition reimbursement.

      The trial court in Nyquist had relied on statistics from the Levitt
case which showed that qualifying institutions under all three segments    of
the New York plan “could be” ones which imposed religious restrictions on
admission, required attendance at religioue services,     required obedience
to the doctrines and dogmas of a particular faith, required students to attend
instruction in the theology or doctrine of a particular faith, were an integral
part of the religious iniesion of the church sponsoring it, had as a purpose
the inculcation of religious values, imposed religious restrictions of faculty
appointments, and imposed religious restrictions on what or how the faculty
may teach.

        Eighty-five per cent of the qualify%ng schools were church affiliated.
The majority opinion of the Supreme Court by Mr. Justice Powell applied
&e same three-part test to which we referred in our Letter Advisory No.
47. As to all three segments of the program it found a proper secular
purpose.    But, when it applied the “effects” test, the program failed. With
reference to the “maintenance and repair funds, ‘I interestingly, the opinion
states:




                                 p. 283
Honorable Ray A. Fowler,    page 3 (H-66)

                   “No attempt is made to restrict payments to
            those expenditures related to the upkeep of facilities
            used exclusively for secular purposes, nor do we
            think it possible within the context of these religion-
            oriented institutions to impose such restrictions.   . . .
            Absent appropriate restrictions on expenditures for
            these and similar purposes, it simply cannot be denied
            that this section has a primary effect that advances
            religion in that it subsidizes directly the religious acti-
            vitiee of sectarian elementary and secondary schools. ”

      Diotinguishing Everson v. Board of Education, 330 U. S. 1,(1947);
Board of Education v. Allen, 392 U. S. 236 (1968); and Tilton v. Richard-
=,   403 U.S. ‘672, the Court said:

                   “These cases simply recognize ,that sectarian
            schools perform secular, educative functions as well
            as religious functions, and that some forms of aid
            may be channelled to the secular without providing
            direct aid to the sectarian.  But the channel is a nar-
            row one, as the above cases illustrate. . . . [~ln
            indirect and incidental effect beneficial to religious
            institutions has never been thought a sufficient defect
            to warrant the invalidation of a state law. ”

      Turning to the tuition reimbursement segment of the New York law,
the Court held that it, dso, failed the “effect” test, even though the pay-
ments w.eie made directly to ,parente without’limit&tionas to theirs use.

                    “There can be no question that these grants
             could not, conristently with the Establishment
             Clause, be given directly to sectarian schools,
             since they would suffer from the same deficiency
             that renders invalid the grants for maintenance and
             repair. In the absence of an effective means of
             guaranteeing that the state aid derived from public
             funds will be used exclusively for secular, neutral,
             and non-ideological purposes, it is clear from our
             cases that direct aid in whatever form is’invalid
           . . . . . ‘I (emphasis added)




                                   p. 284
Honorable Ray A. Fowier.    page 4 (H-66)




       Finally the Court found little difference, in effect, between the
tuition reimbursement and the tax benefit. All segments were held
unconstitutitonal because of their effect of advancing religion.

       Sloan v. Lemon inumlved reimbursement of parents for expenses
incurred in sending their children to nonpublic schools, but without any
limitation on the uses to which the funds could be put~by the parents. The
Supreme Court majority opinion by Justice Powell acknowledged the real-
ity and legitimacy of the legislative purpose, but the court could find no
valid basis to distinguish these grants from those held unconstitutional
in Nyquist, and held them to be unconstitutional.

       Levitt involved another New York statute providing for the reim-
bur,sement of nonpublic schools for expenses incurred by them in admin-
istering, grading and reporting tests required by State law. The Supreme
Court noted that there was no provision for an audit to determine actual
costs.   Nor did the Act require the return of excess funds. The Supreme
Court held that the statute there contained constitutional flaws like some
which led to the decision in Nyquist. All three, Nyquist, ~- Sloan, and
Levitt were decided at the “effect” level; the “entanglements” level was
not reached.

      Hunt was the only one of the cases dealing with an institution of
higherxcation     and the only one upholding aid. The statute involved,
the South Carolina Educational Facilities Act [S. C. Code. Ann. § $ 22-41
et seq. (Cum. Supp. 1971)], established an Authority for assisting insti-
tutions of higher education in the construction snd financing of projects
through issuance of revenue bonds. Projects were to encompass buildings
and related items but, expressly, would not be used for sectarian activi-
ties, etc. State funds were -not involved.

       The Supreme Court held: A. “The purpose of the statute is mani-
festly a secular one. The benefits of the Act are available to all insti-
ttitions of higher education in South Carolina, whether or not having a
religious affiliation.”  B. ” . . . On the record in this case there is no
basis to conclude that the college’s operations are oriented significantly
towards sectarian rather than secular education. ” The “college” was




                                 p. 285
Honorable Ray A. Fowler,    page 5 (H-66)




the Baptist College at Charleston.   Its trustees’were elected by the South
Carolina Baptist Convention. The Convention’s approval was required
for certain financial transactions, and only the Convention could amend
its charter.   There were no religious requirements for faculty member-
ship or student admission.    About 60 per cent of its student body was
Baptist - roughly equivalent to the percentage of Baptists in that area
of South Carolina.

       The opinion is particularly helpful in defining more explicitly the
federal test to be applied in determining whether a program “advances”
religion:

                  11. . . [ T] he Court has not accepted the
            recurrent argument that all aid is forbidden be-
            cause aid to one aspect of an institution frees it
            to spend its other resourcee on religious ends.

                  “Aid normally may be thou@ to have a
            primary effect of advancing religions when it
            flows to an institution in which religion is so
            pervasive that a substantial portion of its func-
            tions are subsumed in the religious mission or
            when it funds a specifically religious activity in
            an otherwise secular setting. . . . I’

      C. As to “excessive entanglement ” the opinion differentiates between
elementary schools of “substantiated religious character” such as those in-
volved in the Lemon case; supra. and church-related colleges where, in
the words of Chief Justice Burger in Tilton. supra, “There is less likeli-
hood. . . that religion will permeate the area of secular education. ‘I (403
U.S. at 687).

      Other language from Chief Justice Burger’s    opinion in
c\caful in assessing federal requirements.

                   “The simplistic argument that every form of
            financial aid to church-sponsored activity violate’s




                                  p. 286
Honorable Ray A.   Fowler,   page 6 (H-66)




            the Religion Clauses was rejected long ago in
            Bradfield v. Roberts, 175 U. S. 291, 44 L Ed 168,
            20 S Ct 121 (1899).    There a federal construction
            grant to a hospital operated by a religious order
            was upheld.’ Here the Act is challenged on the
            ground that its primary effect is to aid the reli-
            giaus purposes of church-related colleges and
            universities.    Construction grants surely aid
            these institutions in the sense that the construc-
            tion,of buildings will assist them to perform their
            various functions.     Bus transportation. textbooks,
            and tax exemptions all give aid in the sense that
            religious bodies would otherwise have been forced
            to find other sources from which to finance these
            services.     Yet all of these forms of governmental
            assistance have been upheld. . . . The crucial
            question is not whether some benefit accrues to
            a religious institution as a consequence of the ieg-
            islative program, but whether its principal or pri-
            mary effect advances religion. ‘I (403 U. S. at 679).

The legal concept expressed in our Letter Advisory of May 24 is consistent
with the latest opinions and no revision of it is required.    A copy of LA-47
is attached and made a part hereof.     The opinions rendered by the Supreme
Court on June 25th have further illuminated the tests’tobe applied in deter-
mining whether the federal Establishment Clause has been violated.        For
that reason we have quoted from them extensively.        Taking them into con-
sideration, we reaffirm our opinion that Articlee54h       does not on its face
violate the Establishment Clause of the Constitution of the United States,
or the Constitution of Texas.    It ~expresses a valid secular purpose and
commands the Coordinatiqg Board to promulgate regulations for its imple-
mentation which.comport with the severe:rrlrictures of the Texas Constitution.
We cannot assume without evidence that the Coordinating Board has failed
or will fnil to heed legislative commands.     We find no constitutional fault
in the statutory concept.

      Caution should be used in equating the Hunt case with the Texas Tuition
Equalization Program because the Hunt (S0ut.h Carolina) program differed




                                  p. 287
Honorable Ray A. Fowler.    page 7 (H-66)




significantly.  It was funded by revenue bond issues (not direct, recur-
ring appropiiations) and in that respect more nearly resembled the
Student Loan Program authorized by Article 3 § 5 50b and Sob-1 of the
Texas Constitution and implemented by the Texas Education Code, $ 52.01,
et seq., avail,able to students attending3    accredited institution of higher
learning in the state, including those publicly owned and operated.     Even
that resemblance is very limited.

       The Hunt program, moreover, like the Tilton case, concerned the
construction     “neutral” buildings to be used for separated secular pur-
poses.   Students and educational programs are not neuters.    Funds used
by them cannot be so easily limited to secular or sectarian compartments.
Failure to segregate them, however, will likely be fatal under the federal
“effects” test; on the other hand, attempts to impose or regulate separa-
tion may cause forbidden “entanglements. ‘I

       Caution is advisable for another reason.   Article 1, § 7 of the Texas
Constitution is more restrictive than the federal charter (with which Hunt
was concerned) and will not tolerate, in our opinion, any aid to sector
sectarian schools.    Denominational schools are not necessarily sectarian
in that sense, and some schools with sectarian programs may be able tq
effectively separate their secular programs from the sectarian remain-
der so. that the use of funds for the one does not have the effect of subsi-
dizing or furthering the other. The dividing lines are delicate but must
be sharp19 drawn so that public funds~are not put to. sectarian uses.

       In Church v. Bullock, 100 S. W. 1025 (Tex. Civ. App. , 1907. affirmed
109 S. W. 115)~, the Court of Appeals approved the following statement as a
correct appraisal of the constitutional provision (Article 7, $ 5) prohibiting
the appropriation. of money for the support of sectarian schools:

                   “In vi’ew of the above decisions and consti-
            tutional provisions, we conclude that the words
            used. . . murt havd been intend&lby tirepwplawho
            ratified them to provide against. the promtilgation
            or teaching of the distinctive doctrines, creeds
            or tenets of any particular Christian or other
            religious sect in schools or inztitutions where
            such instruction was to be paid for out of the pub-
            lic fund, or aided by such funds or by public grants;


                                   p. 288
Honorable Ray A. Fowler,   page 8 (H-66)




                 and that a school or institution is sectarian when
                 the doctrines or tenets of some particular faith,
                 sect’.or religion are taught to the exclusion of others;
                 and especially so where a school or’institution has
                 a distinctive or strict denominational name, descrip-
                 tive or indicative of the fundamental doctrines of the
                 sect to which it belongs, or where a school or insti-
                 tution is under the exclusive control of a sect having
                 such a name, and by a course of instruction exclud-
                 int all others, seeks to inculcate its tenets alone,
                 it is then sectarian, and it makes no difference that
                 pupils of all sects, denominations and religious be-
                 liefs, or those of no belief, are permitted the advan-
                 tage of such school or institution. It is what is taught
                 that is the determining factor. ” (emphasis added)

            If and when the constitutionality of Article q654h is tested before
     the courts, the determination of its federal validity will be based on the
     three tests we-,have stated applied to the particular fact situation then
     at bar, and its validity under the Texas Constitution will depend upon
     facts showing an avoidance of aid to sects and noninterference with
     religious rights of conscience.

           Such determinations depend upon the characteristics    of those to
     whom the grants are given, the institutions receiving them,and the uses
     to which the funds are put by the institutions. If the Coordinating Board’s
     regulations are not unconstitutionally permissive,   the program will, in
     our opinion, survive.

             Rules should be so framed that institutions having the character-
      istics sttributed to the New York schools in Nyquist and in Levitt will not
      be the beneficiary of Tuition Equalization Grants.   Individual recipients
      should not include those, for instance, attending seminaries or divinity
      schools, nor should tuition paid from public funds~for a student be in
      anywise comingled with funds used to defray the cost, -expense or upkeep
     .of sectarian programs or facilities.  Mere church sponsorship of an in-
      stitution would not seem:b itself to be ground for disqualification, but
      every possibility of a grant having more than an indirect or incidental
      effect upon the advancement of religion must be eliminated.




                                       p. 289
.




    Honorable Ray A. Fowler,    page 9 (H-66)




           While the United States Supreme Court appears to find a distinction
    between the usual parochial school in which religionis,    in itself, a reason
    for being, and the usual church sponsored institution of higher education
    in which religion plays no significant part in directing the curriculum
    (perhaps creating a primae facia fact presumption that college programs
    are not permeated by sectarianism),     the presumption of a distinction is a
    rebuttable one. The.mere fact.that an institution is a college or university
    does not call for different tests or rules.  A college having all the char-
    acteristics of the secondary schools involved in Levitt would be subjected
    by the U. S. Supreme Court to the same severe limitations, and in Texas
    no sectarian school, whatever its level, can be the beneficiary of public
    funds.

                                 SUMMARY

                       The Establishment Clause of the U. S. Consti-
                tution,, as recently interpreted by the United States
                Supreme Court will not bar all aid to church spon-
                sored institutions and their students, eo long as the
                aid has a proper secular purpose, does not signifi-
                cantly advance or hinder religion, and does not
                result in excessive entanglements of government in
                religion.   The Texas Constitution prohibits ai~dto
                sects but not ail denominational.institutions are sec-
                tarian in the constitutional sense.




    DAVID M. KENDALL,       Chairman
    Opinion Committee

                                     p. 290
