.       .




                 THE     RTI-OECNEY             GSINERAL

                              OF      TEXAS

                           AUSTIN.    TExAl3   78711


                               January4, 1972


    Hon. Bevington Re,ed, Commissioner
    Coordinating Board,                    s--
    Texas College and University System
    Capitol Station
    Austin, Texas 78711
                                    Opinion No.            M-1036

                                         Re:   Legality of possible con-
                                               tractual agreement between
                                               the proposed Taylor County
                                               Junior College District and
                                               certain private church-
    Dear Dr. Reed:                             related institutions.

         Your letter requesting the opinion of this office is quoted
    as follows:

                 "The Coordinating Board, Texas College and
            University System, charged under law with approving
            elections for the purpose of establishing junior
            college districts, has received a petition from the
            steering committee of TaylorCounty  requesting the
            approval of an election for the creation of a junior
            college district. All the materials related to the
            proposal are attached.

                  "As an integral part of the plan placed before
            the Coordinating Board, it is proposed that the Taylor
            County Junror College Drstrict contract with Abilene
            Christian College, Hardin-Simmons University, and
            McMurry College for the provrsion of certain academic
            services which normally would be provided by the
            junior college drstrict, specifically in the area of
            academic courses



                                     -5053-
     .




Hon. Bevington Reed, page 2      (M-1036)



          "It is noted that the proposed By-Laws for
     Taylor County Junior College Board of Trustees
     provides that 'it shall be forever the policy of
     the Board of Trustees to utilize the resources of
     existing private colleges for the benefit of college
     students and adult continuing education by con-
     tractual agreements with said private colleges.'

          "Question: Would such a contractual arrange-
     ment between the proposed Taylor County Junior
     College District and the private church-related
     colleges of Abilene be legal?"

     Among the materials provided with your request we have an
excellent document entitled "A Study of Higher Education For
Abilene, Texas," by Dr. J. R. Woolf, and a sample of the type
of contract that the yet-to-be-created Taylor County Junior
College DiBtriCt proposes to enter into with McMurry College,
Hardin-Simmons University and Abilene Christian College.
Without going into exhaustive detail, we view the overall
proposal as containing the following elements:

          1,  Creation of Taylor County Junior College
     District by election, with simultaneous. approval of
     bond issue:

          2" Construction of administration and instruc-
     tion building with bond proceeds.   (Vocational and
     technical instruction on the junior college level
     will be carried on in this facility.,)

          3. Contracts with the three private institu-
     tions in Abilene for conduct of primarily academic
     cour6es D Contract students are students of Taylor
     County Junior College, but entitled to sign up for
     courses on whichever of the three campuses they prefer,
     and entitled to fully participate in the student life




                              -5054-
Hon. Bevington Reed, page 3      (M-1036)



     of that campus, Such students may not be required
     to participate in any religious function carried on
     on campus. The payment provisions of the contracts
     specifically and carefully exclude payment for any
     activity connected with any religious purpose at any
     of the schools. Such payments are made on a student
     hour basis, and the elements of costs which go to make
     up that basis are carefully set out.

      The proposed plan of operation is unique in this State.
In reviewing this plan we make no comment concerning the educa-
tional and financial feasibility of the program, as these are
matters within the authority of the Coordinating Board, Texas
College and University System, under Section 51.001, Education
Code. Cur opinion is limited solely to the proposed contracts
between Taylor County Junior College and the three private in-
stitutions,   It is to be understood that the submitted contract
has not been examined for general approval: our analysis has been
limited to the matter of whether such a junior college district
has general authority to enter into this particular type of con-
tract  with church-connected private institutions.

     At the outset of our analysis, we note the provisions of
Section 51.073, Education Code:

          "The board of trustees of junior college
     districts shall be governed in the establishment,
     management and control of the junior college by the
     general law governing the establishment, management
     and control of independent school districts insofar
     as the general law is applicable."

The general powers of a board of trustees for an independent
school district are set out in Section 23.25, Education Code.
The enumeration of powers set forth therein does not specifically
include the power to contract, but the existence of such power
in an agency or administrative body is necessarily implied in
carrying out the functions and duties assigned.   See Crosby vs.
P. L. Marquess & Co., 226 S.W.2d 461 (Tex.Civ.App., 1950, n.r.e.):



                              -5055-
Hon. Bevington Reed, page 4      (M-1036)




Pritchard & Abbott vs. McKenna. 350 S.W.Zd 333,334 (Tex.Sup.
1961). In carrying out its basic function of providing educa-
tional facilities and programs for its students, we'have no
doubt that a junior college district would have authority to
contract for necessary services and supplies. In the instant
case, the proposed system of contracts is designed to provide
academic opportunities for students enrolled in the Taylor
County Junior College. As previously mentioned, we are in no
position to comment on the educational aspects of this proposed
system, and we can only state that, from the legal viewpoint, a
contract which has as its objective the provision of academic
opportunity is within the implied authority of the junior college
board of trustees.

     McMurry College, Hardin-Simmons University, and Abilene
Christian College are all institutions of higher education that
were founded by religious societies. Such societies continue to
play a major role in the operation and financing of these schools.
Notwithstanding su,ch a connection, ,however, the proposed con-
tract would require each school to agree to admit any contract
student without regard to race, creed or color, and to make no
demands of a religious nat.ure upon any such student.

     On June 28, 1971, the United States Supreme Cou,rt issued
two landmark decisions in the area of government-church relations,
Lemon vs. Kurtzman (and its .:ompanion case Earlev v, DiCenso),
403 U,S, 602, 91 S,Ct. 2105, 29 L.Ed,2d 745, and TiEton vs.
Richardson, 403 U-S, 672, 91 SoCt, 2091, 29 L,Ed.2d 790. The
Lemon decision dealt with challenges to Pennsylvania and Rhode
Island statutes which provided state aid to parochial school
teachers for teaching s,trictl.ysecular courses to pupils enrolled
in parochial schoo.ls, The --T41,ton decision upheld the Federal
Higher Education Facilities Act of i963, 20 U.S.C. Sec. 711 et
seq., permitting appropriat,ions for construction for college
and university facilities no,t used for sectarian instruction or
as a place fo:r reli,gious ,worship,, The Court in the Lemon
decision held that the state statutes violated the First Amend-
ment of the U, S. Const,it,irtion,observing, inter alia, that the




                              -~5056-
Hon. Bevington Reed, page 5,   (M-1036)



statutes required the state governments to examine the schools'
records to determine that statutory requirements were being met,
declaring:

           "This kind of state inspection and evaluation
     of the religious content of a religious organization
     ,is fraught with the sort of entanglement that the
     Constitution forbids."

The Court distinguished the decisions in Everson v. Board of
Education, 330 U.S. 1 (1947), upholding state payments for the
busing of children to parochial schools, and Board of Education
v. Allen, 392 U.S. 236 (1968). upholding the purchase of text-
books for secular courses in parochial schools.

     The Court reasoned that in those cases the payments were made
to the students, not the schools. With regard to the payments
to teachers, the Court said:

          "meachers   have a substantially different
     ideological character than books.  In terms of
     potential for involving some aspect of faith or
     morals in secular subjects, a textbook's content
     is ascertainable, but a teacher's handling of a
     subject is not."

     The following is quoted from the opinion of the Supreme
Court by Chief Justice Burger in Tilton v, Richardson, cited
supra, quoting from page 4:

          "There are always risks in treating criteria
     discussed by the Court from time to time as 'tests'
     in any limiting sense of that term. Constitutional
     adjudication does not lend itself to the absolutes
     of the physical sciences or mathematics.  The
     standards should rather be viewed as guidelines with
     which to identify instances in which the objectives
     of the Religion Clauses have been impaired. And. as
     we.have noted in Lemon v, Kurtzman and Earley v. DiCenso,
     decided today, candor compels the acknowledgment


                            -5057-
Hon. Bevington Reed, page 6     (M-1036)



     that we can only dimly perceive the boundaries of
     permissible government activity in this sensitive
     area of constitutional adjudication,

          "Against this backqround we consider four
     questions:  First, does the Act reflect a secular
     leqislative purpose?   Second, is the primary effect
     of the Act to advance or inhibit religion? Third,
     does the adminis,tration of the Act foster an
     excessive qovernment entanqlement with reliqion?
     Fourth, does the implementation of the Act
     inhibit the free exercise of reliqion?"    (Emphasis
     added.)

     Although our constitutional provision requiring the separa-
tion of church and state, Article I, Section 7. Texas Constitution,
stands separate and apart from the prohibitions of the Federal
Constitution, it is our view that the federal limitations as
announced'by the decisions of the U. S. Supreme Court are bind-
ing upon the Texas courts and our constitutional provisions must
be interpreted in harmony therewith.

     Fully understanding that the above and foregoing criteria
are broad tests wi,thin which can co-exist many fact situations
about which reasonable men can differ, we have reached the
following conclu?ior~ with regard t.o the proposed contracts by
the as-yet-unformed Taylor County Junior College District:

      (1) The purpose of the proposed contracts seem to be clearly
set out in the contracts themselves, taken together with the
comprehensive study done by Dr. J. R. Woolf. We have no problem
in concluding that, as a mat,ter of law, the intent of the pro-
posed contracts is to further the educational opportunities open
to the people of Taylor Co,unty a,nd its environs.

     (2) Whether Lhe proposed co,ntracts would have ,the effect
of advancing OCR %hi.biting rel,igion :is a somewhat more trouble-
some question.. Lemon concerned itself deeply with the religious




                              -5058-
Hon. Bevington Reed, page 7      (M-1036)



impact sustained by elementary and secondary school children
studying in parochial schools. The Court found that the
religious purpose served by the existence of these schools could
not help but have an impact upon the impressionable children in
these schools, and, ultimately, that state aid to the parochial
school teachers served to aid the advancement of religion.

     Tilton, on the other hand, dealt with college-level in-
stitutions, and rather summarily found that college students
of this era are not particularly susceptible to religious indoctri-
nation. The Court found that the possibilities for advancement
of religion, given the safeguards of the statute. were minimal.
It is our view that the safeguards of the proposed contracts
provide adequate protection from religious indoctrination for
the proposed junior college students herein, even though such
students are in a category somewhat different from four-year
college students.

     Although we do not feel that the proposed oontracts are an
advancement of religion in the sense that they would operate to
aid in proselyting a religion among public students, we cannot
ignore the question of whether the influx of contract students,
with the attendant cash flow, is an "advancement" within the
prohibited area. Realizing that this is primarily a question
of fact which this office does not have the authority to resolve,
we can only point out that the contracts, on their face, provide
for a quid pro QUO, The various colleges, in return for a cash
payment, are to provide educational services, including campus.
faculty and extracurricular activities.   Since the schools must
provide all these services to their regular students, it is our
view that the ---
               face of the contract provides no apparent basis
for finding that there would be a prohibited advancement of
religion.

      (3) Does the administration of the contracts foster an
excessive government entanglement with religion? The Supreme
Court dealt tentatively with the "excessive entanglements" test




                              -5059-
Hon. Bevington Reed, page 8    (M-1036)



in Wals v. Tax Commission, 397 U.S. 664 (1970). and then adopted
it wholeheartedly in both Lemon and Tilton, supra. In Tilton,:
the Court found that the construction grant to a college-was
a one-time affair, and that future checks as to building use
were de minimus, and thus that no excessive governmental con-
tactswere   incurred.

     On the other hand, in its Lemon decision, the Court found
that the future state contacts in administering payments to
parochial school teachers extended to detailed curriculum
examination by State education officials and continuing
financial review by both educational officials and auditing
officials.  The Court concluded that contacts of this type,
on such a continuing basis, could not help but inject the
State, with all its power, deeply into the affairs of religious
institutions.  The instant contracts provide expressly fork
continuing contract administration by the officials of the
junior college district, and some supervision by the Coordinat-
ing Board, Texas College and University System. It is also
inevitable that the State Auditor's office would be required
to examine the various books and records involved in the dis-
bursement of State supported funds. In sum, we can discern
no essential difference between the State contacts described
in Lemon and those we have just outlined above. Fox "state in-
spection and evaluation of the religious content of a religious
organization" is required, and the Supreme Court has declared
this to be the sort of entanglement which is legally forbidden.
YOU are accordingly advised that it is the opinion of the Attorney
General that the proposed contracts submitted would require "ex-
cessive entanglement" between church and state, in violation z
the First Amendment of the U. S. Constitution and Article I,
Section 7, Constitution of Texas.

     our endeavor in this "sensitive area of constitutional
adjudication" is quite candidly limited to an attempt to predict
the attitude the Supreme Court of the United States would take
if presented with the facts at hand,  In making their decisions




                              -5060-,
Hon. Bevington Reed, page 9     (M-1036)



in Lemon and Tilton, the Justices of the Supreme Court gave
clear evidence of the difficulties that this kind of question
poses in our type of society. From the language of the two
cited opinions, we conclude that the highest court in our land
would find that "excessive entanglements" exist in our fact
situation.

     Our prediction of the United States Supreme Court's view
of our facts is further supported by the following language
of Chief Justice Burger, quoted from Lemon:

          "A broader base of entanglement of yet a
     different character is presented by the divisive
     political potential of these state programs.   In
     a community where such a large number of pupils are
     served by church-related schools, it can be assumed
     that state assistance will entail considerable
     political activity.   Partisans of parochial schools,
     understandably concerned with rising costs and
     sincerely dedicated to both the religious and secu-
     lar educational missions of their schools, will in-
     evitably champion this cause and promote political
     action to achieve their goals. Those who oppose state
     aid, whether for constitutional, religious, or fiscal
     reasons, will inevitably respond and employ all of the
     usual political campaign techniques to prevail. Candi-
     dates will be forced to declare and voters to choose.
     It would be unrealistic to ignore the fact that many
     people confronted with issues of this kind will find
     their votes aligned with their faith.

          "Ordinarily political debate and division, however
     vigorous or even partrsan, are normal and healthy mani-
     festations of our democratic system of government, but
     political division along religious lines was one of
     the principal evils against which the First Amendment
     was intended to protect-"




                              -5061:
  .   .   1




Hon. Bevington Reed, page 10       (M-1036)




      (4) Although the foregoing         discussion makes the fourth
test moot, we deem it advisable          to state that we find nothing
in the proposed contracts which          would seem to have the effect
of inhibiting the free exercise          of religion.

                            SUMMARY

                   Under the rationale of Lemon v. Kurtzman,
              403 U.S. 602 (1971). and Tilton v. Richardson,
              403 U.S. 672 (1971). the most recent decisions
              of the United States Supreme Court in the area
              of church-state relations,.the system of anti-
              cipated contracts between the proposed Taylor
              County Junior College and McMurry College,
              Hardin-Simmons University and Abilene Christian
              College, whereby the three private institutions
              will accept students from the junior college,
              is violative of the First Amendment of the U. S.
              Constitution and Article I, Section 7. Texas
              Constitution, in that such contracts would
              require excessive entanglements between church
              and state.




Prepared by Malcolm L, Quick
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman




                                -5062-
.   .   .




Hon. Bevington Reed, page 11   (M-1036)




Marietta Payne
J. C. Davis
Melvin Corley         \
Linward Shivers

SAM MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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