Mr. W. 0. Shultz II               Opinion No. ~~-711
Associate General Counsel
University of Texas System        Re: Constitutionality of procedures
201 West 7th Street               employed by state universlcies in
Austin, Texas   78701             offering   religion  and   biblical
                                  studies courses

Dear Mr. Shultz:

     Pou seek clarification of the scope of Attorney General Opinion
JM-352 (1985). In Opinion JM-352, this office determined that the
Establishment Clause of the First Amendment to the United States
Constitution prohibits a state university from appointing individuals
who are nominated or salaried by a religious organization to a
university faculty position to teach religious studies or "Bible
Chair" courses. Apparently, there exists widespread misunderstanding
about the scope and implications of Opinion m-352.     This office has
been favored by a comprehensive brief in this matter from the "Friends
of the Biblical Tradition" which asserts that the opinion has been
taken to indicate that religious studies courses cannot be offered at
or through state universities in a constitutional manner. This is not
the intent of Opinion JM-352. The opinion does not "ban" the teaching
of religion courses at state institutions of higher education. Because
this office recognizes the value of these courses and maintains that
they can be offered in a constitutional manner, clarification of the
exact scope of Opinion .JM-352is necessary.

     As indicated in Opinion JM-352:

          [t]he First Amendment to the Constitution of
          the United States forbids laws 'respecting an
          establishment of religion, or prohibiting the free
          exercise thereof.' The United States Supreme
          Court consistently interprets the First Amendment,
          as applied to the states by the Fourteenth Amend-
          ment , to require that the states assume a position
          of neutrality with regard to religion. Wallace,
          [472 U.S. 38 (1985)]; Committee for Public
          Education v. Nyquist, 413 U.S. 756, 773 (1973);
          School District of Abington v. SchempR, 374 U.S.
          203, 216 (1963). Your request requires applica-
          tion of the Establishment Clause portion of this




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Mr. W. 0. Shults II - Page 2   (JM-711)




          provision. The Establishment Clause proscribes
          sponsorship, financial support, and the active
          involvement of the government in religious
          activity. Grand Rapids School District v. Ball,
          105 S.Ct. at 3221; 53 U.S.L.W. at 5008 (U.S. Jun.
          25, 1985) (No. 83-990).

            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
         G   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. Kurtaman,
         403 U.S. 602, 612-13 (1971). The United States
         Supreme Court reaffirmed the viability of this
         three-part test in several recent cases. See.
         s,     Grand Rapids School District v. Ball, 105
         S.Ct. 3216; Aguilar v. Pelton. 105 S.Ct. 3232
         (1985); 53 U.S.L.W. 5013 (U.S. Jun. 25, 1985) (No.
         84-237); Estate of Thornton v. Caldor. Inc., t472
         U.S. 703 (1985)]; Wallace v. Jaffree, 1472 U.S. 38
         (1985')l. As will be seen in the discussion to
         follow, the second and third of these criteria are
         the most plainly implicated in this case.

The opinion concluded that the Establishment Clause prohibits a state
college or university from appointing individuals who are nominated by
or funded by a religious organization to a college or university
faculty position to teach religious studies courses. The opinion
relied primarily on the excessive entanglement prong of the constitu-
tional test.

     Opinion JM-352 also states, with regard to the merger of the
"Bible Chair" program with a department of North Texas State
University, that "the second criterion of Lemon v. Kurtsman, pro-
hibiting the advancement of religion, is also implicated in this case
because of the strong potential for and the appearance of advancing
or endorsing religion." It has been noted that this prong of the
constitutional test Is whether the activity addressed has the primary
effect of advancing religion rather than the "appearance" of advancing
religion and that the suggestion that offering biblical studies
courses in this manner has the primary effect of advancing religion is
unsupported by the facts. A probable effect of allowing a religious
organization to take even partial responsibility for choosing
and paying a university faculty member is to sanction a degree
of supervisory control over a university activity by a religious




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     Hr. W. 0. Shultz II - Page 3   (JM-711)
i




P.




                   1
     organization.    The constitutional meaning of "primary effect" does
     not mean "only" effect.      Enjoyment by a religious organization
     of merely  "incidental" benefits does not violate the constitutional
     prohibition against the "primary" advancement of religion. Widmar v.
     Vincent, 454 U.S. 263, 273 (1981). Conferring an imprimatur of state
     approval on religious sects or practices, however, is not merely an
     "incidental" benefit. 454 U.S. at 274. Attorney General Opinion
     JM-352 could have stated its conclusion regarding advancement less
     ambiguously by stating that allowing a religious organization to
     nominate or pay the salary of a university faculty member gives the
     religious organization the opportunity to control the faculty member.
     This state endorsement   of the religious organization's choice and
     control has the primary effect of advancing religion. A religious
     organization cannot participate in running state affairs. Everson v.
     Board of Education, 330 U.S. 1 (1947).

          It has also been suggested that students will not take these
     courses unless they receive assurance that the teachers are designated
     as college or university faculty. This suggestion, however, only
     reinforces the conclusion that the effect of the appointment process
     advances the religious organization that nominates and pays the
     instructor. As a practical matter, if students wish to take outside
     religious studies courses and are assured that the university will
C
     grant elective credit for these courses, the fact that the course
     instructor is not designated as a college or university instructor or
     professor will not necessarily prevent students from taking the
     courses. Dedicated teachers of religious studies courses will no
     doubt continue to teach without the professional status accorded by
     direct affiliation with a well-known state university.

          The conclusion in Opinion JM-352 is not, however, the equivalent
     of determining that granting elective transfer-type credit for "Bible
     Chair" courses also has the primary effect of advancing religion. The
     primary advancement problem addressed in Opinion JM-352 involves an
     administrative activity -- the appointment of "Bible Chair" teachers
     to the university faculty, not the offering of courses or the actual
     conduct of courses. The impact of Opinion JM-352 is simply that, if a
     state college or university wishes to merge "Bible Chair" teachers
     into its faculty, it must have total discretion over the selection of
     and control over the payment of its teachers, subject to statutory and
     constitutional requirements.




          1. In fact, a University of Texas at Austin course catalogue
P
     submitted to this office by the "Friends of the Biblical Tradition"
     indicates, in part, that "instructors by whom the courses credited
     are given must (1) be under the control of some permanent religious
     organizationof recognized standing. . . ." (Emphasis added).


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Mr. W. 0. Shultr II - Page 4    (JM-711)
                                                                             i

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     There exists no question that a state college or university may
itself offer liberal arts courses on the non-proselytiaing aspects of
religion. See Abington School District v. Schq,         374 U.S. 203
(1963). Inxington      v. Schempp. the United States Supreme Court
stated:

          [I]t might well be said that one's education
          is not complete without a study of comparative
          religion or the history of religion and its
          relationship to the advancement of civilization.
          It certainly may be said that the Bible is worthy
          of study for its literary and historic qualities.
          Nothing we have said here indicates that such
          study of the Bible or of religion, when presented
          objectively as part of a secular program of educa-
          tion, may not be effected consistently with the
          First Amendment.

374 U.S. at 225; see also Wiley v. Franklin, 468 F. Supp. 133, 149 (E.
D. Tenn. 1979). Ideally, state colleges and universities would make
the secular study of religion a standard part of their liberal arts
programs. The realistic problems in obtaining funding for additional
liberal arts programs at state    colleges and universities, however,
cannot be ignored. Outside "Bible Chair" programs help fill the gap
created by a lack of state funding for religious studies courses.

     If a state college or university may itself offer secular courses
in religious studies without violating the Establishment Clause, it
would be anomalous to decide that the college or university could not
grant elective credit for equivalent secular courses in religious
studies offered by religious organizations. State colleges and
universities routinely grant transfer elective credit for religion
courses completed at institutions of higher education which are
supervised or affiliated with religious organizations. If a state
college or university exercises its discretion to grant elective
credit for courses offered through religious organizations, however,
the college or university must comply with the basic constitutional
guidelines discussed in Opinion JM-352. These guidelines stem from
the three-prong test set forth in Lemon v. Kurtrman, 403 U.S. 602,
612-13 (1971). and may be summarized as follows: (1) the nature,
intent, and purpose of the courses must be secular; (2) the primary
effect of the courses cannot advance or inhibit religion; and (3) the
courses must be offered in a manner that avoids excessive entanglement
between government and religion.

     You ask, in specific, about religious studies courses offered for
credit  at the University of Texas at Arlington, the University of
Texas at Austin, and the University of Texas at El Paso. You provide
the following information about these programs:




                               p. 3288
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    Mr. W. 0. Shultz II - Page 5   (JM-711)


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             The University of Texas at Arlington. The University
             of Texas at Arlington gives degree credit for
             religious studies ecourses offered through the
             Department of Religion. These courses are taught
             off-campus by faculty members of the Department who
             are selected from individuals nominated by various
             religious denominations. Salaries of these members
             are paid by the religious denominations.

             Individuals who are nominated to teach in the
             Department of Religion submit their academic creden-
             tials to the entire membership of the Department.
             Academic transcripts and credentials       must   be
             reviewed and approved by the Chair and faculty of
             the Department. The name and credentials of a
             candidate approved by the departmental faculty and
             Chair are submitted to the Office of the Dean of
             Liberal Arts. If the Dean concurs in the depart-
             mental recommendation, the Dean issues a letter
             appointing the individual to an adjunct position in
             the Department of Religion. The review and approval
             process is not perfunctory. Candidates with un-
             acceptable academic credentials are rejected. The
             candidate indicates acceptance by countersigning the
             letter of appointment and returning it to the Dean
             of Liberal Arts.

             The off-campus religious studies' courses are
             included in U.T. Arlington's course schedules and
             the College of Liberal Arts catalog.         Courses
             offered are subject to review by the College
             Curriculum Committee. Students register for these
             courses in the same manner as for other U.T.
             Arlington courses using the sama tuition rates and
             collection procedures. Tuition is retained by the
             University. Semester credit hours generated for
             off-campus religious studies courses are not counted
             in the formulas used for state funding purposes.

             Department of Religion faculty members assign course
             grades and submit grade sheets in the same manner as
             for courses taught by other U.T. Arlington faculty
             members. Student appeals concerning the assignment
             of a grade or other academic matters concerning the
             off-campus religious studies courses are handled
             through the office of the Dean of Liberal Arts and
             the Vice President for Academic Affairs of The
             University of Texas at Arlington.

             The University of Texas at Austin. The University
             of Texas at Austin gives degree credit for biblical



                                   p. 3289
Mr. W. 0. Shultz II - Page 6   (JM-711)




        studies courses offered by the Biblical Studies
        Association (B.s.A.). This is an Association con-
        sisting of instructors holding campus-area Bible
        Chairs that are nominated and salaried by various
        religious denominations. Courses are taught off-
        campus in facilities provided by B.S.A. members.

         Instructors nominated by the B.S.A. and the indivi-
         dual course curricula must be reviewed and approved
         by the Religious Studies Committee, composed of
         College of Liberal Arts faculty members of the
         University of Texas at Austin.        The committee
         conducts a review of the academic content of a
         proposed course and the academic background of the
         individual seeking to teach a biblical studies
         course. Following conuaittee review, the academic
         credentials and course materials are forwarded to
         the Dean of the College of Liberal Arts who may
         either request further review by the College of
         Liberal Arts Course and Curriculum Committee or make
         an immediate decision regarding approval.        The
         review and approval process is not perfunctory.
         Candidates with unacceotable academic credentials
         are rejected.    Biblical Studies Association in-
         structors are not given a U.T. Austin faculty title
         or afforded usual employee benefits; however. they
         are listed in the student/faculty/staff directory as
         instructors and are given. faculty identification


         The B.S.A. instructors assign course grades and
         submit grade sheets through the College of Liberal
         Arts in the same manner as for courses taught by
         other U.T. Austin faculty members.      A student
         wishing to appeal a grade or other academic matter
         dealing with a biblical studies course appeals to
         the Chair of the Religious Studies Committee, the
         Dean, the Executive Vice President and Provost
         and the President of the University of Texas at
         Austin.

         Courses offered are listed in U.T. Austin course
         schedules and the catalog for the College of Liberal
         Arts.   Students register for biblical studies
         courses in the same manner as for other U.T. Austin
         courses using the same tuition rates and collection
         procedures. Tuition is retained by the University.
         Semester credit hours generated for biblical studies
         courses are not counted in the formulas used for
         state funding purposes.




                               p. 3290
    Mr. W. 0. Shultz II - Page 7   (JM-711)


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             The University of Texas at El Paso. The University
             of Texas at El Paso gives degree credit for religion
             courses taught on campus in University classrooms
             by individuals nominated by religious denomina-
             tions.   If paid, the teachers are paid by a
             sponsoring religious denomination.

             The individuals teaching religion courses are
             organized into the Department of Religion and are
             afforded office space on campus.       The academic
             credentials of individuals nominated to teach
             religion courses are reviewed by the Department
             of Religion faculty who forward a recommendation
             to the Dean of Liberal Arts. The recommendation is
             referred to the Religious Studies Advisory Com-
             mittee, composed of regular U.T. El Paso faculty
             members from various departments of the College of
             Liberal Arts, for review of the academic credentials
             of the nominee and further recommendation to the
             Dean. If the Dean approves the recommendation, the
             individual is appointed as a member of the faculty
             of the Department of Religion with the title Adjunct
             Professor. The review and approval process is not
             perfunctory. Candidates with unacceptable academic
             credentials are rejected.

             The content of proposed courses must be reviewed by
             the Department of Religion faculty and by U.T. El
             Paso's Curriculum Committee.     The committee may
             approve, modify or reject a course proposal.

             Members of the Department of Religion faculty assign
             course grades and submit grade sheets in the same
             manner as for courses taught by other U.T. El Paso
             faculty members. A student wishing to appeal a
             grade or other academic matter dealing with a
             religion course appeals to the Dean of Liberal Arts
             and the Vice President for Academic Affairs.

             Religion courses are listed in U.T. El Paso course
             schedules and the catalog of the College of Liberal
             Arts.  Students register for religion courses in the
             same manner as for other U.T. El Paso courses using
             the same tuition rates and collection procedures.
             Tuition is retained by the University. Semester
             credit hours generated for religion courses are not
             counted in the formulas used for state funding
             purposes. (Emphasis added).

        The appointment process at the University of Texas at Arlington
    and the University of Texas at El Paso clearly fall within Opinion



                                   p. 3291
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Mr. W. 0. Shultz II - Page 8    (JM-711)



                                                                         -,


.TM-352. The university identification granted to "Bible Chair"
instructors at the University of Texas at Austin raises the same
issue. No instructor who is nominated or salaried by a religious
organieation should be identified as a state college or university
instructor. Attorney General Opinion JM-352. The appointment to a
state position of a person nominated or salaried by a religious
organization is constitutionally prohibited regardless of the nature
of the courses taught by the person. This office has been assured
repeatedly that the primary concern of the religious studies community
is that some structure be found that will allow the "Bible Chair"
program to continue to receive elective credit from state colleges and
universities.   It would be unfortunate if controversy over the
professional status of these outside    religious studies instructors
were placed above the value of the programs to students. If state
colleges and universities do not wish to continue to grant credit for
those courses, nothing requires them to do so. They cannot, however,
claim that Opinion .I&352 compels them to refuse granting credit. The
appointment issue must remain distinct from the issue of granting
elective credit for courses offered by religious organizations.

     As indicated, any program for granting elective credit for
religious studies courses offered by religious organizations must meet
a three-prong test:     (1) the nature, intent, and purpose of the
courses must be secular: (2) the primary effect of the courses cannot
advance or inhibit religion; and (3) the courses must be offered in a
manner that avoids excessive entanglement. As a basic rule, these
tests can be met by assuring that religious studies courses taught by
individuals chosen and paid by religious organizations remain distinct
from university courses. For example, a recent University of Texas at
Austin catalogue describes these courses:

             Credit toward University degrees is given for
          courses offered by the Biblical Studies Associa-
          m,    under regulations intended to maintain the
                                                       -
          equivalence of these courses with the courses in
          The University of Texas at Austin.

             .   .   .   .

             The instructors by whom the course credited
          are given must (1) be under the control  of some
          permanent religious organization of recognized
          standing; (2) possess
                         least    at              trainin
          demanded of instructors in the University; (3)
          devote their time primarily to    teaching: and
          (4) be approved by the standing cosnaittee-ofthe
          College of Liberal Arts on Bible courses and by
          the President.

             The courses credited must be in the field of
          Biblical studies and on a subject suitable for



                               p. 3292
Mr. W. 0. Shultz II - Page 9 (JM-711)




         University instruction.    The courses must be
         thoroughly organized, with syllabi and regular
         tests  or examinations. and must be given in
         regular classes with meetings at least equal in
         number, in length of period, and in amount of
         preparation required, to those of a University
         course involving the credit asked.       Biblical
         studies courses are subject to the same regula-
         tions and supervision as regular courses given in
         the University. (Emphasis added).

This description indicates that these courses are -
                                                  not "courses in the
University of Texas."

     The description in your request letter of the existing programs
for which credit is granted by the University of Texas System raises a
number of Establishment Clause questions. For example, if courses are
actually taught in a manner which has the primary effect of advancing
religion in general or of advancing a specific denomination, a state
college or university could not grant credit for the courses without
running afoul of the Establishment Clause.' Certain of the procedures
and details outlined in your letter also raise advancement and
excessive entanglement questions: the review by the university of
course content, the review by the university of the instructor's
qualifications, the manner in which the courses are described in the
university material, the manner in which tuition is charged, the
location at which the courses are taught, and the manner in which
grades 'are assigned and grade disputes are resolved. These problems,
however, are not insurmountable. For example, just because the
approval process for granting elective credit may involve university
review of the qualifications of the individual chosen by the religious
organization to teach religious studies courses does not mean that
this review is the equivalent of granting a religious organization
control over the selection of and supervisory control over a
university faculty member.

     The key in avoiding excessive entanglement problems is in keeping
the outside courses distinct. As the United States Supreme Court
stated recently:




     2. Information submitted in response to your request suggests
that some of the religious studies programs currently offered are of
impeccable academic quality. No individual or entity has submitted
any complaint to this office about the actual classroom conduct in
religious studies courses.



                               p. 3293
Mr. W. 0. Shultz II - Page 10   (JMY711)


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          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.
          (Emphasis added).

Grand Rapids School District v. Ball, 105 U.S. at 3226; 53 U.S.L.W.
5006, 5010 (U.S. Jun. 25, 19851 (No. 83-990).

     The Establishment Clause is an extraordinarily sensitive area of
constitutional law which involves complex issues of fact and law. In
Lemon v. Kurtaman. the Supreme Court cautioned:

         Judicial   caveats   against   entanglement must
         recognize that the line of separation, far from
         being a 'wall,' is a blurred, indistinct, and
         variable barrier depending on all the circum-
         stances of a particular relationship.

403 U.S. at 614. Ultimately, the question of whether granting credit
for particular religious studies courses violates the Establishment
Clause depends upon the facts in each individual case.

     There exist no cases directly on point with regard' to religious
studies courses at state institutions of higher education. In Opinion
JM-352 this office indicated:

          Institutions of higher education stand on somewhat
          different footing from lower division schools
          because college students are presumed to be less
          impressionable and less susceptible to religious
          indoctrination than are elementarv and secondarv
          students. See Tilton v. Richardson, 403 U.S. 672;
          685-86 (1971).

The fact that religious studies courses are voluntary at state
colleges and universities and that students must even exert a
great deal of initiative in seeking out these courses is also
highly relevant. Again, the ultimate question is one of degree - a
question which depends on all the circumstances involved in particular
religious studies courses.

     The article 4399, V.T.C.S., opinion process was not designed to
resolve complex factual disputes. Some Establishment Clause questions
are so clear that they may be answered as a matter of law. Attorney




                                p. 3294
Mr. W. 0. Shultz II - Page 11      (JM-711)




General Opinion JM-352 addressed such a question. A state college or
university cannot appoint to a college or university position an
individual who is nominated or paid by a religious organization. To
hold otherwise would also require upholding the reverse situation; it
would be akin to saying that the Constitution allows the state to
select or pay ministers or pastors of churches. This office cannot,
however, state as a matter of law that a state college or university
cannot constitutionally grant elective credit for religious studies
courses offered by religious organizations.

     In fact, if they operate within constitutional guidelines, state
colleges and universities may constitutionally grant credit for
religious studies courses offered by religious organizations. State
colleges and universities have the responsibility to determine on
academic grounds whether to grant credit for such courses. You should
be aware, however, that if credit is granted for religious studies
courses, it must be done in a nondiscriminatory manner. All religious
studies courses must be examined in the same objective manner --
regardless of the religion. or particular denomination of a religion,
to which they relate.

                                SUMMARY

              The Establishment Clause of the First Amendment
         to the United States Constitution prohibits a state
         college or university from appointing individuals
         to a faculty position when the individuals are
         nominated or salaried by a religious organization.
         A religious organization cannot participate in
         running state affairs.

              A state college or university may offer liberal
         arts courses on the non-proselytizing aspects of
         religion. If a state college or university may
         offer secular courses in religious studies, it would
         be anomalous to determine that the college or
         university could not grant elective transfer-type
         credit for secular courses in religious studies
         offered by religious organisations. If a state
         college or university exercises its discretion to
         grant elective credit for courses offered through
         religious organizations, it must comply with consti-
         tutional guidelines: (1) the nature. intent, and
         purpose of the courses must be secular: (2) the
         primary effect of the courses cannot advance or
         inhibit religion; and (3) the courses must be
         offered in a manner that avoids excessive en-
         tanglement between government and religion. Whether
         granting credit for particular religious studies




                                   p. 3295
Mr. W. 0. Shultz II - Page 12    (~~-711)




         courses violates the Establishment Clause dapends on
         the facts in each individual case. The article
         4399, V.T.C.S., opinion process was not intended to
         resolve complex factual disputes.

                                       Jzp&&
                                                  MATTOX
                                          Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY RELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEARLRY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




                                p. 3296
