Untitled Texas Attorney General Opinion

, ~-a 3 TRE A’ITOIZNEY GENERAL OF TEXAS AUSTIN. TIcsAs rsrll * January 9, 1974 The Honorable Bevington Reed Opinion No: H-203 Commissioner Coordinating Board Re: Wheth& church-related Texas College 81 University System educational institutions P. 0. Box 12788, Capitol Station participating in the Tuition Austin, Texas 78711 Equalization Grrnt Program are prohibited from limiting employment to those of a particular religion Dear .br. Reed: You have mquested our opinion on the question: “[W]hether. . . church-related educational inetititions participating in the Tuition Equali- tation Grants Programs are prohibited from : using employment practices which require adherence to a particular religion. ” It ir asked against a factual background identifying an institution of higher education, whose bylaws state, in their preamble: “[The College] shall stand as a witness for Jesus Christ expressed directly through its administration, faculty und students. To assure the perpetuation of these basic concepts of its founders it is resolved that all those who become associated with [the college] as a trustee, officer, member of the faculty or of the staff must believe in the divine inspiration of the Bible, both the Old Testament and New Testament, that man was directly created by God, the virgin birth of Jesus Christ, our Lord and Saviour as the p 955 . . . . The Honorable Bevington Reed, page 2 (H-203) Son of God, that He died for the sins of all men and thereafter arose from the grave, that by repentance and the acceptance of and belief in Him, by the grace of God, the individual is saved from eternal damnation lud receives eternal life in tbe presence of God; and it is further resolved that the ultimate teachings in this college ehall liwaya be consistent with the above prin- ciples. ‘I The College, has refused to hire a person of the Jewish faith for a staff position solely because of the applicant’s religion. She ‘was inftirmed this was its established policy. Subchapter F of chapter 61, Texas Education Code (formerly Article 265411, V. T. C.S. ), authorizes the Coordinating Board, Texas College and University System, to provide tuition equalization grants from appropriated funds to Texas residents enrolled in approved Texas colleges or universities under certain circumstances. (See Acts 1973. 63rd Leg., ‘p. 78, ch. ,51);. ’ Section 61.229 of me Code now provides in its subsection (b): “The coordinating board shall mahe such regulations as may be necessary to comply with the provisions of Article I, Section 7 . . . and other parts of the Texas Constitution.” Article 1. g7, of ~theConstitution provides: “No money &all 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. ‘I In Attorney General Letter Advisory No. 47 (1973). addressed to the Chairman of the Senate Committee on Finance, we reviewed the constitutionality ui kricie 265,4h as it related to separation of chiwch and state and of the proposed Appropriatioar Act provision implementing it. We said: Q. 956 The Honorable Bevlngton Reed, page 3 (H-203) “We are of the opinion &at Article 265421.and the appropriation of funds for that program, reflect a proper secular legislrtive purpose and are constitutional, so long as the Coordinating Board under its regulations, ldmia isb r the s program so as to avoid the advancement or inhfbftion of religim and so as to avoid thejse of pub- lic funds or property for the benefit of sects, religious societies, or tfieological or religious seminaries, in turn avoiding ‘excessive entanglements, ’ ” In arriving at that conclusion we remarked: “We have not been asked to pass upon, axI do not pass upon, the constitutionality of any particular grants to specific individuals attending particular schools. Indeed, &at fact finding process ir beyond both the scope of your request and the competence of thio office. The courts have reviewed, in passing upon these questions, the precise nature of the schools and programs involved, the precise percentage of public funds going to denominational schools, and a host of other factual matters which canonly properly be determined by an administrative body or a court. ” Your present request presents certain facts to be true, Fd our ansyer here is so Iimited. This office cannot resolve factual disputes, and our opinion regarding the law applicable to a given set of facts should not be considered a finding that ouch facts exist Subsequent to the issuance of Letter Advisory No. 47, pursuant to a request by the Secretary of the Coordinating Board. we issued Attorney Gensral Opinion H-66 (1973) which again reviewed the constitutionality of Tuition Equaliution Grants in the light of recent opiniow by the Supreme Court of the United States. We reaffirmed the conclusion reached by LA No. 47 and said: ffArtlcle 1, )7 of the Texas Conrtltutlon is more restrictive than the federal charter . . . and will not p. 957 The Honorable Bevlngton Reed, page 4 (H-203) tolerate, in our opinion, any aid to sects or sectarian schools. Denominational schools are not necessarily sectarian in that sense, and some schools ‘with sectarian progrems may be able to effectively separate their secular programs from the sectarian remainder so that the use of funds for the one does not have the effect of subsidizing or furthering the other. The dividing lines are delicate but must be sharply drawn so that public funds are not put to sectarian uses. ” In considering the meaning to be given the term “sectarian scho01s~’ in the constitutional sense, we quoted from language in Church v. Bullock, 100 S. W. 1025 (Tex. Civ. App., 1907, lff’d 109 S. W. ll5): “‘Inviewofthe.. . constitutional provisions, we conclude that the words used. . . must have been intended by the people who ratified them to provide against the promulgation or teaching of the distinctive doctrines. creeds or tenets of any particular Christian or Mher religious sect in schools or institutions where such instruction was to be paid for out of the public fund, or aided by such fuuds or by public grants. , . . I I’ Speaking of the responsibility of the Coordinating Board to promulgate rules and regulations for the implementation of the Tuition Equalization “’ Grant program, we said in H-66: “Rules should be so framed that institutions ’ having the characteristics attributed to [schools with which recent U. S. Supreme Court decisions were concerned) will not be the beneficiary of Tuition Equaliaation Grants. Individual recipients should not include those, for instance, attending seminaries or divinity schools, nor shouldtuition paid from pub- lic funds for a student be in anywise comingled with funds used to defray the cost, expense or bpkeep of sectarian programs or facilities. Mere church sponsorship of an institution would not seem by itself Q. 958 The Honorable Bevington Reed, page 5 (H-203) to be ground for disqualification, but every possi- bility of a grant having more than an indirect or incidentof effect upon the advancement of religion mad be eliminated. ” In Committee for Public Education and Religious Liberty v. Nvquist, U.S. (1973). and in Levitt v. Committee for Public Education and Gigiouaiberty, -Il. S. -(1973), ~&heSupreme Court of the United States struck down a program of aid to private schools described in H-66 as one where: “[G]ualifying institutions . . . ‘could be’ ones which [I] imposed religious restrictions on admission, [2] 5required attendance at religious services, [3] required obedience to the doctrinem and dogmas of a particular faith. [4] required students to attend instruction in the theology or doctrine of a particular faith, [5] were an integral part of the religious mission of the church sponsoring it, [6] had as a purpose the inculcation of religiour ,wlues, [7] imposed religious restrictions ‘, ] of fkculhr apDoihtments. and [8] imposed restrictions on what or how the faculty may teach. ” (emphasis added) ‘V It is not neceeeary, in our opinion, ,,that & these elements be present in order to render an institution “sectarian” under either the federal or the state Constitution. It is enough under the Texas constitutional prohibition against use of public funds that an institution requires obedience to the dogmas of a particular faith on the part of its staff nysmbers and refuses to have a pamon as a staff member became of that pason’s religiour belief. In our opinion, discrimination among staff members on the basis of religious affiliation or religious views, in policy or in practice. is very strong evidence that the institution is sectarian and that funds channeled through it would be used to promote or inhibit religion. In answer to your inquiry therefore; it ii our opinion that the Coordi- nating Board would abuse the discretion vested in it by $61.229(b), Texas Education Code, if it approved participation in the Tuition Equalization Grant Q. 959 -. . . The Honorable Bevington Reed, page 6 (H-203) program by an institution which, in the factual context presented to us, follows a policy or practice of refusing to hire non-Christians for staff positions solely because of their religion. See Attorney General Letter Advisory No. 47 (1973), ~Attomey General opinion H-66 (1973). / SUMMARY Where an institution of higher education requires as an establirhed fixed policy that all of its trustees, officers, faculty and staff members acknowledge belief in and adhere to particular and detailed rd,ligious doc- trines and refuses to hire a person as a staff member because of the person’s religious beliefs, it would be an abuse of discretion for the Coordinating Board, Texas College and University System, to find the institution qualified to participate in the Tuition Equalization Grant program a8, a non-sectarian institution. Very truly yours, v Attorney General of Texas DAVID M. KENDALL. Chairman Opinion Committee p. 960