   OFFICE   OF THE ATTORNEY   GENERAL   STATE    OF TEXAS

   JOHN CORNYN




                                                  March 8.1999



The Honorable Frank Madla                                   Opinion No. K-001 3
Chair, Senate Committee on
  Intergovernmental  Relations                              Re:      Applicability of section 130.008 of the
Texas State Senate                                          Education     Code, which allows high school
P.O. Box 12068                                               students to obtain joint credit for certain public
Austin, Texas 7871 l-2068                                   junior college courses, to persons attending a
                                                            private school (RQ-1222)

Dear Senator Madla:

         You have requested our opinion regarding the construction of section 130.008 of the
Education Code. You ask whether that provision, which permits a public junior college to offer
courses in which high school students may enroll, is applicable to students attending private schools.
We conclude that it is not, but that the legislature may amend the statute to make such benefits
available to non-public school students consistent with the First Amendment to the United States
Constitution.

        Section 130.008 provides, in relevant part:

                          (a) Under an agreement with a school district, a public junior
                  college may offer a course in which a student attending a high school
                  operated by the school district may enroll and for which the student
                  may simultaneously receive both:

                             (1) course         credit toward the student’s       high   school
                  academic requirements         for graduation; and

                              (2) course credit as a student of the junior college, if the
                  student has been admitted to the junior college or becomes eligible to
                  enroll in and is subsequently admitted to the junior college.

                           (b) The junior college may waive the tuition fee for a high
                  school student enrolled in a course for which the student may receive
                  joint credit under this section.
The Honorable   Frank Madla - Page 2               (JC-0013)




TEX. EDUC. CODE ANN. 5 130.008(a), (b) (V emon Supp. 1999). Under the terms of this provision,
a public junior college may offer courses for simultaneous credit only to a student “attending a high
school operated by [a] school district,” and only “under an agreement with [the] school district.”
Since a private school is not “operated by a school district,” the statute as presently written can have
no application to a student attending a private school.

        You also ask whether section 130.008 could constitutionally be amended to apply to “all
Texas high school students.” The issue thus raised is whether the Establishment Clause of the First
Amendment to the United States Constitution would prohibit the application of the amendment to
students who attend sectarian schools.

          The Establishment Clause of the Constitution says merely that “Congress shall make no law
respecting an establishment ofreligion.” While the Clause is directed at Congress, it applies equally
to state and local governmental bodies. Church of the Lukumi Babalu Aye, Inc. v. City ofHialeah,
508 U.S. 520,53 l(1993). Modem Establishment Clause law as applied to public education derives
from the United States Supreme Court’s 1971 opinion in Lemon v. Kurtmann, 403 U.S. 602 (1971).
Lemon set forth a three-part test to determine the validity of a particular statute: 1) it must have a
secular legislative purpose; 2) its primary effect must be one that neither advances nor inhibits
religion; and 3) it must not foster an excessive governmental entanglement with religion. Id. at 612-
 13. In Aguilar v. Felton, 473 U.S. 402 (1985) and its companion case, School District of Grand
Rapids Y. Ball, 473 U.S. 373 (1985), the Court invalidated two “shared time”programs that involved
sending public school teachers into parochial schools to provide remedial and “enrichment”
education to disadvantaged children. The Court concluded that, although such programs served a
purely secular purpose, they failed the other two prongs oftheLemon test because they had sectarian
“effects,” and because they resulted in “excessive entanglements.” Like the programs in Aguilur and
Ball, it seems clear that the kind of amendment you propose would serve a secular legislative
purpose-to     make public junior college courses available to all Texas high school students-and
 therefore comply with the first requirement of the Lemon test.

        The programs struck down in Aguilar and Ball were conducted on the premises of parochial
schools, and it is apparent that these cases turned on the matter of location. Indeed, in the subsequent
case of Agostini v. Felton, 117 S. Ct. 1997 (1997) the Court noted that “Aguilar implied that
providing the services off-campus is entirely consistent with the Establishment Clause.” Id. at 2013.
Thus, even under Aguilav and Ball, a public junior college would in all likelihood be constitutionally
permitted to offer joint-credit courses to high school students so long as such courses were not
conducted on parochial school premises.

         In the recent case of Agostini, however, the Supreme Court rejected the assumptions that
“any public employee who works on a religious school’s premises is presumed to inculcate religion
in her work”; that “the presence of public employees on private school premises creates an
impermissible symbolic union between church and state”; and that “any public aid that directly
assists the educational function of religious schools is invalid.” Id. at 2001. So long as the “aid is
allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made
The Honorable   Frank Madla - Page 3               (JC-0013)




available to both religious and secular beneficiaries on a nondiscriminatory basis,” it is “less likely
to have the effect of advancing religion.” Id.; see also Helms Y. Picard, 151 F.3d 347,358 (5th Cir.
1998). We assume that, under the kind of amendment you propose, the joint-credit courses would
be allocated to students on the basis of neutral, secular criteria that neither favor nor disfavor
religion, and would be made available to both religious and secular beneficiaries                 on a
nondiscriminatory    basis. Under such circumstances, the amendment of the kind you suggest would
satisfy the second prong of the Lemon test: that its effect is neither to advance nor inhibit religion.

         The third requirement of the Lemon test-that       a statute not foster excessive government
entanglement with religion-has      also been modified by Agostini. The “entanglement” question is
now treated as “an aspect of the inquiry into a statute’s effect.” Agostini, 117 S.Ct. at 2015. In order
to find “excessive entanglement,” it is at present necessary to show that a program would require
“pervasive monitoring by public authorities.” Id. The joint-credit courses of which you inquire
would presumably not be conducted on parochial school premises. Nor does your proposal appear
to vest public junior colleges with any authority over the parochial schools. Thus it does not appear
that there would arise a need for monitoring of any kind, “pervasive” or otherwise. Although we
cannot resolve facts in an attorney general’s opinion, it would appear, on the basis ofthe information
you have furnished, that the amendment you propose would satisfy the third prong oflemon-that
it not foster excessive governmental entanglement with religion. We conclude that the legislature
may amend section 130.008 to extend joint-credit public junior college courses to private school
students consistent with the Establishment Clause of the First Amendment to the United States
Constitution.

        We emphasize that we are not here passing upon the validity of any particular legislation as
any proposed bill is subject to amendment and any opinion from this office would be premature.
This opinion, we hope, offers you some guidance as to what is permissible under the Establishment
Clause of the First Amendment and leaves the details of enactment to the legislature.
The Honorable   Frank Madla - Page 4             (JC-0013)




                                         SUMMARY

                   At present, a public junior college may offer courses for simultaneous
           high school-junior college credit only to a student “attending a high school
           operated by a school district,” and as a result, may not offer such courses to
           private school students. The legislature may amend section 130.008 of the
           Education Code to extend joint-credit public junior college courses to private
           school students consistent with the Establishment         Clause of the First
           Amendment to the United States Constitution.




                                              Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General
