Untitled Texas Attorney General Opinion

OFPXE OF THE ATTORNEY GENERAL. STATE OF TEXAS

JOHN CORNYN

March 21,200O

The Honorable Cindy Maria Gamer Opinion No. K-0200
349th Judicial District Attorney
P.O. Box 1076 Re: Whether chapter 110 of the Civil Practice
Crockett, Texas 75835 and Remedies Code exempts a religious post-
secondary educational institution from regulation
by the Higher Education Coordinating Board
(RQ-0134-X)
Dear Ms. Gamer:

You ask whether chapter 110 of the Civil Practice and Remedies Code, which protects
religious freedom, permits a religious organization to operate a degree-awarding university free of
state regulation under chapter 61, subchapter G of the Education Code. A definitive answer to your
question would require the investigation and resolution of fact questions, which cannot be
accomplished in the opinion process. We find, however, that the application to religious educational
institutions of state laws regulating the awarding ofdegrees does not, as a general matter, violate the
law restricting governmental burdens on the free exercise of religion.

You inform us that anonprofit religious organization, the Therapon Institute, Inc., plans to do
business in Houston County, Texas, as Therapon University for the purpose of educating, training,
certifying and awarding degrees and credentials to ministers, missionaries, counselors
and nonprofessional adherents to its religious belief system. Letter from Honorable Cindy Maria
Garner, District Attorney for 349 Judicial District, to Honorable John Comyn, Texas Attorney
General (Oct. 26, 1999) (on tile with Opinion Committee) [hereinafter “Request Letter”]. The
Christian Bible will serve as the only textbook. Id. You wish to know whether chapter 110 of the
Civil Practice and Remedies Code would enable the Therapon Institute to “provide a non-academic
degree curricula in Biblical Counseling and Biblical Studies, restricted to the sole purpose of
ministerial and religious training, & bestow degrees upon those participants who satisfactorily
compete their course of study” without being subject to regulation as a private postsecondary
educational institution pursuant to chapter 61, subchapter G of the Education Code. Id. at 2
(emphasis in original).

Chapter 110 of the Civil Practice and Remedies Code was modeled on the federal Religious
Freedom Restoration Act of 1993,42 U.S.C. $5 2000bb-2000bb-4 (1994) (“the RFRA”). Congress
enacted the RFRA in response to the United States Supreme Court’s interpretation in Employment
Division v. Smith, 494 U.S. 872 (1990), of the First Amendment ban on federal and state laws that
prohibit the t?ee exercise of religion. U.S. CONST.amend. I (Congress shall make no law respecting
The Honorable Cindy Maria Gamer - Page 2 (JC-0200)

an establishment of religion, or prohibiting the free exercise thereof); see Cantwell v. Connecticut,
310 U.S. 296 (1940). In Smith, “the Supreme Court virtually eliminated the requirement that the
government justify burdens on religious exercise imposed by laws neutral toward religion.” 42
U.S.C. $ 2000bb(a)(4) (1994). Prior to the Smith decision, courts had required the government to
show a compelling interest for a law that burdened rights protected by the free exercise clause. See
id. 9 2000bb(b)(l). One purpose of RFRA was “to restore the compelling interest test as set forth
in Sherbet-t v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), and to
guarantee its application in all cases where free exercise of religion is substantially burdened.” Id.
5 2000bb@)(l).

The United States Supreme court declared the RFRA inapplicable to states in City ofBoerne
v. Flares, 521 U.S. 507 (1997). See HOUSERESEARCH ORG.,BILLANALYSIS,Tex. S.B. 138,76th
Leg., R.S. 2, 5 (May 17, 1999). Chapter 110 was intended to provide essentially the same
protections as the federal law had provided. TEX. CIV. PRAC.& REM.CODEANN. 5 110.001(a)(l)
(Vernon Supp. 2000). It protects the “free exercise of religion, ” defined as an act or refusal to act
that is substantially motivated by sincere religious belief, and provides that a government agency
may not substantially burden a person’s free exercise ofreligion, unless the agency demonstrates the
application ofthe burden to the person “is in furtherance of a compelling governmental interest” and
is “the least restrictive means of furthering that interest.” Id. $3 110.001(a)(l), .003. Apersonwho
successfully asserts a claim or defense under chapter 110 is entitled to declaratory and injunctive
relief, compensatory damages, and reasonable attorney’s fees, court costs, and other reasonable
expenses incurred in bringing the action. Id. 5 110.005; see id. 5 110.004 (person may assert
violation of right to free exercise of religion as defense in judicial or administrative proceeding).
In determining whether an interest is a compelling governmental interest under section 110.003,
courts are to give weight to the interpretation of compelling interest in federal case law relating to
the free exercise of religion clause of the First Amendment of the United States Constitution. Id.
5 110.001(b). Chapter 110 applies to each state law, “unless the law is expressly made exempt from
the application of this chapter by reference to this chapter.” Id. $ 110.002(c). Chapter 61,
subchapter G of the Education Code is not expressly exempt from chapter 110.

Subchapter G of chapter 61, Education Code, provides for regulation of private
postsecondary educational institutions. See TEX. EDUC.CODEANN. § 61.302(2) (Vernon 1996 &
Supp. 2000) (defining “private postsecondary educational institution”). Its purpose is to prevent
deception of the public “resulting from the conferring and use of fraudulent or substandard college
and university degrees” and to “regulate the use of academic terminology in naming or otherwise
designating educational institutions.” Id. $61.301 (Vernon 1996). The purpose clause finds that
degrees and equivalent indicators of educational attainment are widely relied upon to judge the
competence of persons engaged in numerous activities necessary to the general welfare and that it
is in the public interest to regulate them. It also finds it in the public interest to protect legitimate
institutions and persons holding degrees from them. Id.

Unless a private postsecondary educational institution holds a certificate of authority from
the Texas Higher Education Coordinating Board (the “Coordinating Board”), it may not “use the
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term ‘college,’ ‘university,’ ‘seminary,’ ‘school ofmedicine,’ . . . or ‘law center’ in the official name
or title” of the institution, nor may it describe the institution by one of the enumerated terms or a
term having a similar meaning. Id. 5 61.313(a). The use of the term “university” in the official
name of the proposed private postsecondary educational institution would bring the Therapon
University within the provisions of subchapter G. To receive a certificate of authority to grant a
degree and to enroll students for courses that may be applicable toward a degree, the institutionmust
meet the certification standards established by the Coordinating Board. The Board has adopted
detailed standards for certification, among them standards for faculty qualifications, faculty size,
curriculum, and record-keeping. 19 TEX. ADMIN.CODE5 5.214 (1998), amended by 24 Tex. Reg.
12062 (Dec. 31,1999).

While there are exemptions from subchapter G and from the prohibition on using terms such
as “college” or “university” in the institution’s name, none of these apply to the contemplated
Therapon University. See TEX.EDUC.CODEANN. $5 61.303 (Vernon Supp. 2000) (exemption for
institution that is fully accredited by a recognized accrediting agency or an institution or degree
program that has been approved by a state agency authorizing the institution’s graduates to take a
professional or vocational state licensing exam); 61.313(e) (exemptions for certain institutions
established before September 1, 1975).

A person may not grant a degree on behalf of a private postsecondary education institution
unless the Coordinating Board has issued the institution a certificate of authority to grant the degree.
Id. 8 61.304. A “degree” is defined as

any title or designation, mark, abbreviation, appellation, or series of
letters or words, including associate, bachelor’s, master’s, doctor’s,
and their equivalents, which signifies, purports to, or is generally
taken to signify satisfactory completion of the requirements of all or
part of a program of study leading to an associate, bachelor’s,
master’s, or doctor’s degree or its equivalent.

Id. $61.302(l) (Vernon Supp. 2000); see also IV OXFORDENGLISHDICTIONARY 148-49 (2d 1989)
(“degree” is “[a]n academical rank or distinction conferred by a university or college as a mark of
proficiency in scholarship”). The requestor has informed us that the Therapon Institute wishes to
award “degrees and credentials” to ministers, missionaries, counselors, and others, and to “provide
a non-academic degree curricula in Biblical Counseling and Biblical Studies.” Request Letter,
supra, at 2. We cannot determine as a matter of law whether the “degree” that the Therapon Institute
wishes to award would signify, purport to signify, or be generally taken to signify “satisfactory
completion of the requirements of all or part of a program of study leading to an associate,
bachelor’s, master’s or doctor’s degree or its equivalent.” If the proposed degree is within the
statutory definition, the Therapon Institute could not grant it without holding a certificate of
authority granted by the Coordinating Board.
The Honorable Cindy Maria Gamer - Page 4 (JC-0200)

If awarding degrees and using the term “university” are not of particular importance to the
Therapon Institute, it should be able to provide instruction in the Bible without being subject to
regulation under subchapter G of chapter 61, Education Code. In this case, representatives of the
Therapon Institute should contact the Coordinating Board about modes of operating that would not
be subject to state regulation, and it would not be necessary to consider the effect of chapter 110 of
the Civil Practice and Remedies Code. Because you expressly ask about chapter 110, we will
consider whether it would exempt the proposed Therapon University from regulation by the
Coordinating Board as a private postsecondary educational institution.

If any person “substantially motivated by sincere religious belief’ shows that regulation of
the proposed Therapon University would substantially burden his or her free exercise of religion,
chapter 110 of the Civil Practice and Remedies Code requires the court to determine whether the
burden “is in furtherance of a compelling governmental interest” and is “the least restrictive means
of tinthering that interest.” TEX. CIV. PRAC. &REM. CODE ANN. 5 110.003 (Vernon Supp. 2000).
The free exercise clause protects the freedom to believe and the freedom to act. While the freedom
to believe is absolute, the freedom to act is limited. Wisconsin v. Yoder, 406 U.S. 205,220 (1972);
North Valley Baptist Church v. McMahon, 696 F. Supp. 518,524 (E.D. Cal. 1988) aff’d, 893 F.2d
1139 (9th Cir. 1990), cert. denied, 496 U.S. 937 (1990). A “substantial burden” is placed on a
person’s free exercise of religion if a governmental regulation forces a person to choose between
following the precepts of his religion and forfeiting government benefits on the one hand, and
abandoning his religious precepts in order to accept the benefits on the other hand. See Sherbert
v. Verner, 374 U.S. 398, 404 (1963) (where a person’s religion prohibited her from working on
Saturdays, state may not deny her unemployment benefits for refusal to accept job that required
Saturday work). Even facially neutral legislation may give rise to a burden on religion if, as applied
to a particular religious sect, it forces individuals to choose between abandoning their religious
beliefs or sacrificing an important government benefit. Thomas v. Review Bd. Znd. Employment Sec.
Div., 450 U.S. 707, 717-18 (1981) (t?ee exercise clause was violated by state law denying
unemployment compensation to an individual who refused on religious grounds to accept work
building weapons). The state-granted privilege of operating a school has been held to be a
government benefit for purposes of the free exercise clause. North Valley Baptist Church, 696 F.
Supp. at 525.

In New Jersey State Board of Higher Education v. Board of Directors of Shelton College,
448 A.2d 988 (N.J. 1982), a religious educational institution argued that because the Bible
commands the separation of church and state, the institution was prohibited by its beliefs from
submitting to licensure by the state. Shelton College, 448 A.2d at 993-94. The court found that the
state licensing statutes required the college to choose between a religious tenet and the privilege of
conferring baccalaureate degrees, and thus imposed at least some burden on the exercise of religion.
Id. at 994. Other courts have found that state regulation of religious schools has burdened the free
exercise of religion. See also Fellowship Baptist Church v. Benton, 620 F. Supp. 308, 313 (S.D.
Iowa 1985), ufd in part, rev’d in part on other grounds, 815 F.2d 485 (8th Cir. 1987) (state
regulation, requiring the certification of teachers burdened the free exercise of religion because it
required church adherents to violate the belief in the “headship of Christ”); State v. Rivinius, 328
The Honorable Cindy Maria Gamer - Page 5 (JC-0200)

N.W.2d 220,227 (N.D. 1982), cert. denied, 460 U.S. 1070 (1983) (teacher certification requirement
imposed, “to a degree,” a burden on the religious beliefs of a Christian academy).

We cannot determine whether or not a court would find that applying chapter 61, subchapter
G, of the Education Code and the related regulations to the proposed Therapon University would
burden any person’s free exercise of religion. Persons asserting that their religious freedom is
violated would have to show how the law and regulations operated against them in the practice of
their religion. Abington Sch. Dist v. Schempp, 374 U.S. 203,223 (1963); see State v. Clarksville Sch.
of Theology, 636 S.W.2d 706,709 (Term. 1982) (no evidence offered that anyone’s religious beliefs
required operation of Clarksville School of Theology). However, even if state regulation of the
proposed Therapon University would be a substantial burden on the free exercise ofreligion, chapter
110 of the Civil Practice and Remedies Code will not be violated if the state shows that the
regulation is in furtherance of a“compelling governmental interest” and is the least restrictive means
of furthering that interest. See TEX. CIV. PRK. &I&M. CODEANN. $4 110.003(b) (Vernon Supp.
2000); see also Yoder, 406 U.S. at 221 (courts balanced the competing religious and legislative
interests to determine whether legislation violated the free exercise clause).

The New Jersey Supreme Court determined that the application of state licensing statutes to
a sectarian college whose religious doctrine precluded state licensure did not violate the First
Amendment. Shelton College, 448 A.2d at 988. The court pointed out that not all burdens on
religion are unconstitutional, and legislation that impedes the exercise of religion may be
constitutional if there exists no less restrictive means of achieving some overriding state interest.
Id, at 994 (citing United States v. Lee, 455 U.S. 252 (1982); Prince v. Massachusetts, 321 U.S. 158
(1944)). “The legislation at issue here advances the State’s interest in ensuring educational standards
and maintaining the integrity of the baccalaureate degree.” Id. at 995. The licensing requirement
preserved the public’s trust in the significance of an academic degree and protected students from
substandard education. Id. at 996. It “is now beyond question,” the court said, that maintenance of
minimum educational standards in all schools constitutes a substantial state interest. Id. at 996
(citing Wisconsin v. Yoder, 406 U.S. 205 (1972); Lemon v. Kurtzman, 403 U.S. 602 (1971); Pierce
v. Society of Sisters, 268 U.S. 510 (1925)). Thus, the state had an overriding interest in regulating
the religious college. Shelton College, 448 A.2d at 997. Other courts have also concluded that the
state had a compelling interest in applying its licensing requirements to religious schools. See North
ValleyBaptist Church, 696 F. Supp. at 530 (applicationofstate day-care facility licensing provisions
to church preschool did not violate free exercise clause); Fellowship Baptist Church, 620 F. Supp.
at 3 16 (application of state reporting requirements and teacher certification requirements to religious
school did not violate free exercise clause); State v. Rivinius, 328 N.W.2d at 231 (application of
teacher certification requirement to Christian academy did not violate free exercise clause).

We believe that a court would hold that Texas has a compelling state interest in regulating
the use of the term “university” and the award of academic degrees by educational entities. These
interests are well described in chapter 61, subchapter G’s statement of purpose: “to prevent
deception of the public resulting from the conferring and use of fraudulent or substandard college
and university degrees” and “to regulate the use of academic terminology in naming or otherwise
The Honorable Cindy Maria Gamer - Page 6 (JC-0200)

designating educational institutions.” TEX.EDUC.CODE.ANN.5 61.301 (Vernon 1996). Regulation
of the evidences of college and university educational attainment is in the public interest, because
they are used by employers, professional groups, and the general public to judge the competence of
persons engaged in a wide range of activities. Id. Accordingly, we believe a court would find that
any burden state regulation might have on the free exercise of a person’s religion is outweighed by
the state’s interest in uniform regulation of the awarding of degrees by postsecondary educational
institutions.

Not only must regulation under chapter 61 of the Education Code serve a compelling
governmental interest, it must do so by the “least restictive means.” TEX.CIV.PRAC.&REM. CODE
ANN. 5 110.003 (Vernon Supp. 2000). Where a person seeks a complete exemption from the
application of a particular state regulation, courts have found that a regulatory method is the least
restrictive means of achieving a compelling state interest if granting an exemption would
significantly hinder attainment of the state interest. See United States v. Lee, 455 U.S. 252,259-60
(1982); Shelton College, 448 A.2dat 996; Statev. Corpus ChristiPeople’sBaptist Church,Znc., 683
S.W.2d 692,696 (Tex. 1985) (state’s compelling interest in protecting children in childcare facilities
outweighs burden imposed on church by licensing requirements).

We assume for purposes of this opinion that the Therapon Institute would seek a complete
exemption from the state licensing requirements for degree-granting institutions. You tell us that
Therapon wishes to award “degrees” based on a “non-academic” curriculum centered on the
Christian Bible. If exempted from state standards for the award of degrees, holders of Therapon
“degrees” would have the same outward credentials as degree-holders of certified institutions, but
would not have met the same minimum educational standards. This result clearly would undermine
the purpose of the state certification laws, which are designed to create a standard of education on
which the public may rely with confidence. The Supreme Court of New Jersey rejected an
exemption from regulation for a religious college on the same grounds:

[Alccommodation of defendants’ religious beliefs would entail a
complete exemption from state regulation. . [S]uch accommoda-
tion would cut to the heart of the legislation and severely impede the
achievement of important state goals. Furthermore, if an exemption
were created here, Shelton College would receive an advantage at the
expense of those educational institutions that have submitted to state
regulation. Such a development would undermine the integrity of the
baccalaureate degree, erode respect for the state higher education
scheme, and encourage others to seek exemptions. Thus, the uniform
application of these licensing requirements is essential to the
achievement of the State’s interests.

Shelton College, 448 A.2d at 996.
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Accordingly, we believe a court would conclude that chapter 61, subchapter G of the
Education Code, and the regulations adopted thereunder by the Coordinating Board, as a general
matter are the least restrictive means of achieving the state’s interest in maintaining the integrity of
the postsecondary degrees and protecting its citizens from fraud and misleading representations. In
conclusion, we believe that the courts would find that chapter 110 ofthe Civil Practice and Remedies
Code would not exempt a religious university that grants degrees from regulation as a private
postsecondary educational institution pursuant to chapter 61, subchapter G of the Education Code.
The Honorable Cindy Maria Gamer - Page 8 (JC-0200)

SUMMARY

Chapter 110 of the Civil Practice and Remedies Code
provides that a governmental agency may not substantially burden a
person’s free exercise ofreligion, unless the agency demonstrates that
the burden is in furtherance of a compelling governmental interest
and is the least restrictive means of furthering that interest. Although
state regulation of a religious university that grants degrees as a
private postsecondary educational institution might substantially
burden some person’s free exercise of religion, chapter 110 does not
exempt the religious university from such regulation.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee