                                 The Attorney        General of Texas

JIM MATTOX                                      September 6, 1985
Attorney General


Supreme Court Sullding         I4r.Kenneth H. Aahworth                Opinion No. J&352
P. 0. BOX 12548                Coeardssioner
Austin, TX. 7871% 2548         Coordinatinn Board                     Re: Whether a state institution
5121475-2501
                               Texas Collage & University System,     of higher education may appoint
Telex Q101874-1367
Telecopier   512/4750266
                               P. 0. Box 12788                        to a faculty teaching position
                               Austin, Texas   78711                  an individual who is nominated
                                                                      and salaried by a religious
714 Jackson, Suite 700                                                denomination
Dallas, TX. 75202-4508
21417428944
                               Dear Mr. Ashworth:

4624 Alberta Ave., Suite 180        You ask whetler s state Institution of higher education may
El Paso, TX. 79905.2793        constitutionally appoint individuals who are nominated and salaried by
915E.353484
                               a religious denomination to a faculty position to teach religious
                               studies courses. If' the answer to this question is affirmative, and
1001 Texas, Suite 700          the institution appoints the nominee of one or more religious
Houston, TX. 77002-3111        denominations, you ask whether the institution may deny appointment to
713223.5886                    similarly qualifiell nominees of any other religious denomination.
                               Your questions require this office to consider the scope of the clause
                               of the First Amendment to the United States Constitution which
805 Broadway. Suite 312
Lubbock. TX. 79401.3479
                               declares that "Cong;ressshall make no law respecting an establishment
8061747-5238                   of religion or px,ohibiting the free exercise thereof" and which
                               applies to the stat,asby virtue of the Fourteenth Amendment. Wallace
                               v. Jaffree, 105 S.Ct. 2479 (1985).
4303 N. Tenth. Suite S
McAllen. TX. 78501-1685
5121682.4547                        Your letter indicates that North Texas State University initially
                               requested authorization from the Coordinating Board of the Texas
                               College and University System to transform the university's philosophy
200 Main Plaza, Suite 400      department into a department of philosophy and religious studies which
San Antonio, TX. 78205.2797
                               would consist of the present philosophy department's faculty and of
51212254191
                               the holders of thg! six Bible chairs at the university. You state
                               that, at present,
An Equal OppOrtunityI
Affirmative Action Employer                 Bible chairs    are teaching poslt<ons maintained
                                         by religl.c#us  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 ch,%:lrs. They also own and maintain the
                                         off-campus facilities in vhich     religion classes
                                         are taught. Although some public institut%ons do




                                                          p. 1605
Mr. Kenneth 8. Ashworth - Page 2   (JM-352)




          not have Bible cha:lrsassociated with them, those
          that do, permit students to apply from six to
          twelve semester cr,edithours in religion courses
          as electives toward their degrees.

     The university's propoeal, 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 addreirs your questions in the context of the
information you submItted to us, i.e. whether or not a state
university may appoint individuals who=     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 sa:lariedby 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 che,irsor the university must find teachers
willing to serve without pay. Further, you expressly ask whether such
positions may be salaried by religious organizations. The constitu-
tionality of both the methc#d of appointment and the funding for the
proposed religious studies faculty concerns you.

     As indicated, the 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 bv the Fourteenth Amendment. to reauire that the states assume
a position of neutrality with regard to religion. Wallace, 105 S.Ct.
2479; Committee for Public Education v. Nyquist, 413 U.S. 756, 773
(1973); School District of -Abington v. Schempp, 374 U.S. 203, 216
(1963). Your request requ&s    applFcation of the EstablFshment Clause
portion of this provision.      The Establishment Clause proscribes
sponsorship, financial supI,art. and the active involvement of the
government in religious sctivity. Grand Rapids School District v.
Ball, 105 S.Ct. at     ; 53 U.S.L.W. at
83-990).

     Analysis of the EstablL~shmentClause 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
governmenZ%tivity must, fjrst, 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. Ku~ctsman.
                            --     403 U.S. 602. 612-13 (1971). The
United States Supreme Court reaffirmed the viability of this
three-part test in several recant cases. See, e.g., Grand Rapids




                               p. 1606
Mr. Kenneth II.Ashworth - Pege 3   (JM-352)




School District v. Ball, 105 S.Ct. 3216; Aguilar v. Pelton, 105 S.Ct.
3232 (1985); 53 U.S.L.W. 51113 (U.S. Jun. 25, 1985) (No. 84-237);
Estate of Thornton v. Cal~dor. 105 S.Ct. 2914 (1985); Wallace v.
Jaffree, 105 S.Ct. 2479. A1;=11 be seen in the discussion to follow,
the second and third of these criteria are the most plainly implicated
in this case.

     The study in public sechools 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 Cl.emse. School District of Abington v.
Schempp, 374 U.S. at 225. Such courses, however, may not be taught in
a manner which advances relllgion;they must focus on the nonsectarian
aspects of religious history and writings. Rsll v. Board of School
Commissioners of Conecuh Co?*,    656 F.2d 999. 1002 (5th Cir. 1981);
see also Americans United for Separation of Church and State v. School
District of Grand Rapids, ;?8
S.Ct. 3216; Crockett v. Sorenson,
                            --     568 F. Supp. 1422 (W.D. Va. 1983);
Wiley v. Franklin, 468 F. Supp. 133 (E.D. Term. 1979). Institutions
of h%gher education stand on somewhat different footing from lower
division schools because college students are presumed to be less
impressionable and less suc'ceptibleto religious indoctrination than
are elementary and aecondarr students. See Tilton v. Richardson. 403
U.S. 672. 685-86 (1971). <Although university classes may involve
discussion of the tenets of various religions more deeply than lower
division schools, a state institution may not allow teachers of
religious studies to proselytize in classes which are officially
offered or sponsored by the university. Thus, despite the fact that
the Establishment Clause clearly applies to religious studies courses
at state institutions of h:tl;hereducation, offering such courses 5s
not prohibited per se. We note, however, that even if a course is
planned with a secular purpose, the ultimate test of whether It
impermissibly advances rr.ligion depends upon actual classroom
performance. See Hall v. Board of School Commissioners of Conacuh
County, 656 F.2dat   1002; .-
                           Wiley v. Franklin, 474 F. Supp. 525, 531
(E.D. Tenn. 1979).

     In Wiley v. Franklin, 468 F. Supp. 133 (E.D. Term. 1979). the
court dealt with a course of Bible study wh%ch was sponsored by city
and county elementary schools. The court held that the use of a Bible
study comwlttee which, independent of school officials. established
the Bible study curriculum and prescribed the selection, training, and
supervision of Rible teachers, constituted an excessive entanglement
in violation of the third prong of the Lemon v. Kurteman test. The
court in Crockett V. Sorencron,568 P. Supp. 1422, came to the same
conclusion in a similar faZa1     setting. The courts in both cases
required the school system to establish a plan under which school
officials would -- without participation by any nonschool person or
organization -- select, employ. train, and supervise all Bible




                               p. 1607
Mr.   Kenneth R. Ashworth - Page 4   (JM-352)




teachers. Wiley, 468 F. Supp. at 151; Crockett, 568 F. Supp. at
1430-31; see also Wiley v. Franklin, 497 F. Supp. 390 (E.D. Term.
1980); Wiley v. Franklin, 47$ F. Supp. 525 (E. D. Term. 1979). Both
courts emphasized that the qualifications for Bible teachers must be
virtually- identical to those applicable to other public school
teachers. 474 F. Supp. at 5:!8;568 F. Supp. at 1431. The Crockett v.
Sorenson court further emphnlaized that no Inquiry of the teacher's
beliefs should be made. 568 I'.Supp. at 1431.

     With regard to the fuu,ding of Bible courses, both courts held
that the school system was not prohibited by the Establishment Clause
from accepting private cont:cibutionsto fund the teachers' salaries
and other expenses of the courses, but that such contributions must be
made with "no strings attach&."   468 F. Supp. at 152; 568 F. Supp. at
1431. The private donors were not to be allowed to exercise control
or even Influence over the Bible teachers or over the Bible courses.
468 F. Supp. at 152. A prolztcdure, such as the one in question here,
where the only salary a teacher could receive comes from a religious
organization involves a certain degree of influence both over the
availability of teachers an,1 over the teachers who actually receive
funding from religious organlxations.

     As will be shown in tha,discussion to follow, the two procedures
at issue     here, nominatlms     by   and   salaries from religious
denominations for university :Eaculty,do not hold up under the rulings
in these cases and in recent  Supreme Court cases with regard to the
excessive entanglement tes't. 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, 454
U.S. 263 (1981); Tilton v. RichardsonTsupra.               In Tilton v.
Richardson, the Supreme c0u1.Tupheld one-time, single-purpose federal
construction grants for acade!sicfacilities at private institutions of
higher education, including church-related institutions. With regard
to the excessive entang1emer.tquestion, the court emphasized that the
status of an institution as nne of higher education reduces the risk
of entanglement because less intensive government supervision is
needed to determine whethr:r religion actually permeates areas of
secular education. Tilton v. Richardson, 403 U.S. at 687.             The
"non-ideological" governmsn~ grants did not involve "any intimate
continuing - relationship ‘II -dependency between         goveriment and
religiously-affiliated instj.tutions." Id. The Court recognized that
supervision of teachers requires more government involvement and hence
involves a greater potent&I!, for excessive entanglement. Id.; see
Lemon v. Kurtzman. 403 U.S. at 619: see also Roemer V. Board ofPub=
iibrks of Maryland, 426 U.S. 736 (19-t         v. HcNair,    413 U.S. 734
(1973). 14 system whereby university faculty1 members          are either
nominated or salaried by re:l:lgious organizations Involves the type of




                                p. 1608
Mr. Kenneth R. Ashworth - Page 5 (JM-352)




intimate continuing relationchip between government and religion which
is prohibited by the EatablirrhnentClause.

     In Aguilar v. Pelton the Supreme Court relied upon the excessive
entanglement criterion of the Lemon test and stated that

          [e]ven vhere state aid to parochial institution8
          does not have the primary effect of advancing
          religion, the provision of such aid nay nonethe-
          less violate the Ewablishnent Clause owing to the
          nature of the intc:ractionof 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 obvwse situation in which religiously funded
professors will teach offic!.aluniversity 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
                     See Americans United for Separation of Church and
endorsing religion. ---
State v. School District of Grand Rapids, 718 F.2d at 1399; Rall v.
Board of School Commissioners of Conecuh County, 656 F.2d at 1002.
Presumably, the "nominations' of individuals for faculty positions by
religious- denominations will carry some weight. and if such
"nominationsn do influence zhe selection process, the effect of the
selection process is to favor or endorse religion in general and the
nominating religious denomiration in specific. As the Supreme Court
stated in 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 denosinations 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,bI. 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




                                p. 1609
Mr. Kenneth 8. Ashworth - Pa,ge6     (JM-352)




involve an excessive entangl.ementbetween 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 aca~demic credit, but it must structure the
selection of teachers for such courses in a manner which does not
differ from the way in whic:h.it selects the teachers for all of its
other academic courses. lhe university is not prohibited by the
Establishment Clause from a~xepting private donations to fund such
courses, i.e. by accepting i'undingto set up a "Bible Chair"; however,
the donorsmay not be permitted to exercise control or influence over
religious studies courses or professors.

                               SUMMARY

             The Estab1ishmc:r.t
                               Clause of the First Amendment
          to the United States Constitution, as applied to
          the states throqh      the Fourteenth Amendment,
          prohibits a state :institutionof higher education
          from appointing individuals who        are either
          nominated or salaried by a religious organization
          to a universitl~ faculty position to teach
          religious studies courses.       These processes
          involve   excessive: entanglement between      the
          university and re:L:tgionand involve the potential
          for and the appearance of advancing, endorsing, or
          favoring religion.




                                         JIM     MATTOX
                                         Attorney General of Texas

TOM GREEN
First Assistant Attorney Gereral

DAVID R. RICIIARDS
Executive Assistant Attorney.General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Covauittee

Prepared by Jennifer Riggs
Assistant Attorney General




                               p. 1610
Mr. Kenneth 8. Ashworth - Pagtr7    (JM-352)




APPROVED:
OPINION COMMITTEE

Rick Gilpin. Chairman
Susan Garrison
Tony Guillory
Jim Noellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk




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