                                  January     30,   1975


The Honorable    Jack K.    Williams                       Opinion     No.   H-   511
President
Texas A&M University                                       Re: Whether use of physical
College Station,   Texas    77843                          facilities  of state university
                                                           by church affiliated   student
                                                           organization    would violate
                                                           the U.S. and Texas Constitu-
                                                           tions .

Dear   Dr.   Williams:

         You have asked    our opinion       on the legality         of the university’s
recognition  of various ch~urch affiliated    student organizations      and of
permitting  them the same use of university       facilities permitted     other
recognized   student organizations,    including the rent-free      use of meeting
rooms and auditoriums.      We understand that religiously         oriented organi-
zations would constitute   only a small percentage        of the total number of
student clubs recognized    by the university.

        The First Amendment     to the United States Constitution   which
applies to the states by virtue of the Fourteenth   Amendment     provides
in part that:

                      Congress      shall make no law respecting   an
                  establishment      of religion, or prohibiting the
                  free exercise     thereof . . . .

         In examining   governmental  enactments   against the backdrop of
the constitutional  language,  the Supreme Court has .developed    a four  .,,
point test which must be considered.       The ‘Guestions which. must be
considered    are:




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The Honorable     Jack K.   Williams,    page 2     (H-511)




            First,   does the Act reflect a secular legislative
        purpose?     Second,   is the primary    effect of the Act         ’
        to advance or inhibit religion?       Third,   does the
        administration    of the Act foster an excessive      govern-
        ment entanglement      with religion?    Fourth,    does the
        implementation     of the Act inhibit the free exercise
        of religion?

Tilton v. Richardson,     403 U.S. 672, 678 (1971).  See also Hunt v. McNair.
413 U.S.   734 (1973); Committee   for Public Education v. Nyquist.   413 U.S.
756 (1973); Attorney   General Opinions H-203   (1974). H-66 (1973). Letter
Advisory   No. 47 (1973).

     We are not prepared     to conclude that theme uniitersity’s    policy of recqgniz-
ing student clubs, including some religiously-oriented           clubs,   does not have
a secular purpose of encouraging        students to meet to discuss       ideas and
pursue goals of common interest and promote the secular purpose of
establishing  a pluralistic   community.      See Walt V. Tax Commission,          397
U.S.   664 (1970) (Brennan,    concurring);zyishian       v. Board of Regents
of New York,     385 U.S.   589 (1967).

    Neither are we convinced that the university’s          policy of recogniz-
ing student clubs, including      some religiously-oriented       clubs, would have
the primary   effect of advancing or hindering       religion.    The primary   effect
appears to be to encourage      the interchange    of ideas by all types of groups
of which religious   organizations    constitute  only a small portion.      See Allen
                                                                             --
v. Morton,   495 F.2d 65 (D.C.      Cir. 1973).

     Nor can we say that the entanglement        test is violated.    We understand
that recognition    of an organization   operates as an essentially       non-discretionary
act and that use of facilities    by these groups is handled on a “resermtion,
first come,    first served” basis.     Greater entanglement       problems    might
be pre~sented if the school denied use of its facilities      to religious    groups and
was required to ascertain      a group’s purposes     and monitor its activities.
Walz v. Tax Commission,         397 U.S.   664 (1970); E,‘Healy        v.. James.    408
U.S.   169 (1972).

     There is an internal tension in the First Amendment    between the
establishment   clause and the free exercise   clause., Tilton v. Richardson,
403 U.S.   672 (1971).  The Supreme Court has held denials of licenses     for




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        The Honorable     Jack K.   Williams    p. 3   (H-511)




        use of public parks for religious     services      to be invalid as a denial of equal
        protectioh  in the exercise   of freedom      of religion.    Fowler v. Rhode Island,
        345 U.S. 67 (1953);    Kunz v. New York,,        340 U.S.    290 (1951); Niemotko v.
        Maryland,    340 U.S.   268 (1951).   Although it did not discuss       the relation
        between the establishment     and free exercise        clauses,  the Supreme Court
        did not question the use of public parks and streets for religious             purposes
        and did rely on the denial of the right of free ‘exercise         of religion.    If, as
        we understand,    use of university    facilities    by student religious    orgati.za-
        tions is on the same basis as those facilities          are used by other student.
        clubs and there is no university     policy or action to encourage         attendance,
        we believe any problems     concerning      denial of the free exercise       of religion
        can be avoided.    See Stacy v. Williams,         306 F. Supp. 963 (N.D.       Miss.
        1969) (3-judge  court).

                 Of course even protected     activities  are subject to reasonable  regula-
        tions respecting   the time,  place and manner of their exercise.      Cantwell v.
        Connecticut,   310 U.S.   296 (1940).   The university    can and should, however,
        condition the use of its facilities   by student religious   groups in the same
        manner as it does with non-religious        groups.   Healy v. James,    408 U.S.
        169 (1972).

                  In addition to satisfying the requirements    of the First Amendment
        to the United States Constitution,     any progra,m of recognizing    student
        religious    groups is subject tothe limitations  of article 1, section 7 of the
        Texas Constitution     that:

                          No money shall 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.

                 It has been held in    a long and well researched     opinion that a school
        building may be rented to      a religious   group during non-school    hours.
        Attorney    General Opinion    O-5354    (1943).   And see Pratt v. Arizona    Board
        of Regents,    520 P. 2d 514   (Ariz. 1974).     Webelieve  that, when.use of a
        small portion of a building      by a religious   group is permitted  as aapart of




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    The Honorable     Jack K.     Williams     p.   4    (H-511)




    a larger   student-club   program        which the university             has determined    is an
    important   part of its overall educational function,  such use could not be
    correctly   termed the “appropriation”    of property belonging to the State
    for religious   purposes  within the intent and contemplation  of article 1,
    section 7 of the Texas Constitution.

            Even though there is some expenditure        of state funds for utilities
    and maintenance     occasioned    by the student group’s use of a meeting room,
    we believe the amount is normally        so small as to be insignificant.   As the
    Florida Supreme Court said in relation to a similar         situation under a
    similar  constitutional   provision:

                          We think, however,     that it is totally unnecessary
                     to become involved in any prolonged discussion            of the
                     applicability   of the separation   of Church and State
                     principle.    In regard to the Florida     Constitutional
                     prohibition against contributing      public funds in aid of
                     any religious    denomination,    we find nothing in this
                     record to support a conclusion       that any public funds
                     have been contributed.       Taking note of appellant’s
                     insistence   that the use of the building is something
                     of value and that the wear and tear is an indirect
                     contribution   from the public treasury,     it appears to
                     us that we might here properly      apply the maxim
                     “De minimis     non curat lex. ” Nothing of substantial
                     consequence    is shown and we see no reason to burden
                     this opinion with a discussion    of trivia.

             Southside Estates      Baptist    Church       v.       Board   of Trustees,   115 So. 2d
    697,   699 (Fla. 1959).
                                                                 ”
            Your question is narrow, and we have limited our answe;    solely to
    the question raised.  We do not pass on any possible action or fact situation
    which might go beyond the scope of the question presented  here.

                                        SUMMARY
                                                        \    /
                          Where    a university         provides        meeting    rooms
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            The Honorable    Jack K.    Williams,        page   5     (H-511)




                    for student groups,    including some religiously-oriented
                    groups,    as part of a broad-based    student club program,
                    it is not precluded   from so permitting     the use of meeting
                    rooms and auditoriums       on a non-discretionary,     first
                    come-first    served basis where there is no university
                    policy or action to encourage     attendance.

                                                           Very     truly yours,




                                                           Attorney     General    of Texas

            APPROVED:




            DAVID   M.   KENDALL,      First   Assistant




            C. ROBERT HEATH.           Chairman
            Opinion Committee




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