Mr. W. 0. Shultz II Opinion No. ~~-711
Associate General Counsel
University of Texas System Re: Constitutionality of procedures
201 West 7th Street employed by state universlcies in
Austin, Texas 78701 offering religion and biblical
studies courses
Dear Mr. Shultz:
Pou seek clarification of the scope of Attorney General Opinion
JM-352 (1985). In Opinion JM-352, this office determined that the
Establishment Clause of the First Amendment to the United States
Constitution prohibits a state university from appointing individuals
who are nominated or salaried by a religious organization to a
university faculty position to teach religious studies or "Bible
Chair" courses. Apparently, there exists widespread misunderstanding
about the scope and implications of Opinion m-352. This office has
been favored by a comprehensive brief in this matter from the "Friends
of the Biblical Tradition" which asserts that the opinion has been
taken to indicate that religious studies courses cannot be offered at
or through state universities in a constitutional manner. This is not
the intent of Opinion JM-352. The opinion does not "ban" the teaching
of religion courses at state institutions of higher education. Because
this office recognizes the value of these courses and maintains that
they can be offered in a constitutional manner, clarification of the
exact scope of Opinion .JM-352is necessary.
As indicated in Opinion JM-352:
[t]he 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 by the Fourteenth Amend-
ment , to require that the states assume a position
of neutrality with regard to religion. Wallace,
[472 U.S. 38 (1985)]; Committee for Public
Education v. Nyquist, 413 U.S. 756, 773 (1973);
School District of Abington v. SchempR, 374 U.S.
203, 216 (1963). Your request requires applica-
tion of the Establishment Clause portion of this
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Mr. W. 0. Shults II - Page 2 (JM-711)
provision. The Establishment Clause proscribes
sponsorship, financial support, and the active
involvement of the government in religious
activity. Grand Rapids School District v. Ball,
105 S.Ct. at 3221; 53 U.S.L.W. at 5008 (U.S. Jun.
25, 1985) (No. 83-990).
Analysis of the Establishment Clause 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
G or government activity must, first, 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. Kurtaman,
403 U.S. 602, 612-13 (1971). The United States
Supreme Court reaffirmed the viability of this
three-part test in several recent cases. See.
s, Grand Rapids School District v. Ball, 105
S.Ct. 3216; Aguilar v. Pelton. 105 S.Ct. 3232
(1985); 53 U.S.L.W. 5013 (U.S. Jun. 25, 1985) (No.
84-237); Estate of Thornton v. Caldor. Inc., t472
U.S. 703 (1985)]; Wallace v. Jaffree, 1472 U.S. 38
(1985')l. As will be seen in the discussion to
follow, the second and third of these criteria are
the most plainly implicated in this case.
The opinion concluded that the Establishment Clause prohibits a state
college or university from appointing individuals who are nominated by
or funded by a religious organization to a college or university
faculty position to teach religious studies courses. The opinion
relied primarily on the excessive entanglement prong of the constitu-
tional test.
Opinion JM-352 also states, with regard to the merger of the
"Bible Chair" program with a department of North Texas State
University, that "the second criterion of Lemon v. Kurtsman, pro-
hibiting the advancement of religion, is also implicated in this case
because of the strong potential for and the appearance of advancing
or endorsing religion." It has been noted that this prong of the
constitutional test Is whether the activity addressed has the primary
effect of advancing religion rather than the "appearance" of advancing
religion and that the suggestion that offering biblical studies
courses in this manner has the primary effect of advancing religion is
unsupported by the facts. A probable effect of allowing a religious
organization to take even partial responsibility for choosing
and paying a university faculty member is to sanction a degree
of supervisory control over a university activity by a religious
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Hr. W. 0. Shultz II - Page 3 (JM-711)
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organization. The constitutional meaning of "primary effect" does
not mean "only" effect. Enjoyment by a religious organization
of merely "incidental" benefits does not violate the constitutional
prohibition against the "primary" advancement of religion. Widmar v.
Vincent, 454 U.S. 263, 273 (1981). Conferring an imprimatur of state
approval on religious sects or practices, however, is not merely an
"incidental" benefit. 454 U.S. at 274. Attorney General Opinion
JM-352 could have stated its conclusion regarding advancement less
ambiguously by stating that allowing a religious organization to
nominate or pay the salary of a university faculty member gives the
religious organization the opportunity to control the faculty member.
This state endorsement of the religious organization's choice and
control has the primary effect of advancing religion. A religious
organization cannot participate in running state affairs. Everson v.
Board of Education, 330 U.S. 1 (1947).
It has also been suggested that students will not take these
courses unless they receive assurance that the teachers are designated
as college or university faculty. This suggestion, however, only
reinforces the conclusion that the effect of the appointment process
advances the religious organization that nominates and pays the
instructor. As a practical matter, if students wish to take outside
religious studies courses and are assured that the university will
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grant elective credit for these courses, the fact that the course
instructor is not designated as a college or university instructor or
professor will not necessarily prevent students from taking the
courses. Dedicated teachers of religious studies courses will no
doubt continue to teach without the professional status accorded by
direct affiliation with a well-known state university.
The conclusion in Opinion JM-352 is not, however, the equivalent
of determining that granting elective transfer-type credit for "Bible
Chair" courses also has the primary effect of advancing religion. The
primary advancement problem addressed in Opinion JM-352 involves an
administrative activity -- the appointment of "Bible Chair" teachers
to the university faculty, not the offering of courses or the actual
conduct of courses. The impact of Opinion JM-352 is simply that, if a
state college or university wishes to merge "Bible Chair" teachers
into its faculty, it must have total discretion over the selection of
and control over the payment of its teachers, subject to statutory and
constitutional requirements.
1. In fact, a University of Texas at Austin course catalogue
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submitted to this office by the "Friends of the Biblical Tradition"
indicates, in part, that "instructors by whom the courses credited
are given must (1) be under the control of some permanent religious
organizationof recognized standing. . . ." (Emphasis added).
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There exists no question that a state college or university may
itself offer liberal arts courses on the non-proselytiaing aspects of
religion. See Abington School District v. Schq, 374 U.S. 203
(1963). Inxington v. Schempp. the United States Supreme Court
stated:
[I]t might well be said that one's education
is not complete without a study of comparative
religion or the history of religion and its
relationship to the advancement of civilization.
It certainly may be said that the Bible is worthy
of study for its literary and historic qualities.
Nothing we have said here indicates that such
study of the Bible or of religion, when presented
objectively as part of a secular program of educa-
tion, may not be effected consistently with the
First Amendment.
374 U.S. at 225; see also Wiley v. Franklin, 468 F. Supp. 133, 149 (E.
D. Tenn. 1979). Ideally, state colleges and universities would make
the secular study of religion a standard part of their liberal arts
programs. The realistic problems in obtaining funding for additional
liberal arts programs at state colleges and universities, however,
cannot be ignored. Outside "Bible Chair" programs help fill the gap
created by a lack of state funding for religious studies courses.
If a state college or university may itself offer secular courses
in religious studies without violating the Establishment Clause, it
would be anomalous to decide that the college or university could not
grant elective credit for equivalent secular courses in religious
studies offered by religious organizations. State colleges and
universities routinely grant transfer elective credit for religion
courses completed at institutions of higher education which are
supervised or affiliated with religious organizations. If a state
college or university exercises its discretion to grant elective
credit for courses offered through religious organizations, however,
the college or university must comply with the basic constitutional
guidelines discussed in Opinion JM-352. These guidelines stem from
the three-prong test set forth in Lemon v. Kurtrman, 403 U.S. 602,
612-13 (1971). and may be summarized as follows: (1) the nature,
intent, and purpose of the courses must be secular; (2) the primary
effect of the courses cannot advance or inhibit religion; and (3) the
courses must be offered in a manner that avoids excessive entanglement
between government and religion.
You ask, in specific, about religious studies courses offered for
credit at the University of Texas at Arlington, the University of
Texas at Austin, and the University of Texas at El Paso. You provide
the following information about these programs:
p. 3288
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Mr. W. 0. Shultz II - Page 5 (JM-711)
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The University of Texas at Arlington. The University
of Texas at Arlington gives degree credit for
religious studies ecourses offered through the
Department of Religion. These courses are taught
off-campus by faculty members of the Department who
are selected from individuals nominated by various
religious denominations. Salaries of these members
are paid by the religious denominations.
Individuals who are nominated to teach in the
Department of Religion submit their academic creden-
tials to the entire membership of the Department.
Academic transcripts and credentials must be
reviewed and approved by the Chair and faculty of
the Department. The name and credentials of a
candidate approved by the departmental faculty and
Chair are submitted to the Office of the Dean of
Liberal Arts. If the Dean concurs in the depart-
mental recommendation, the Dean issues a letter
appointing the individual to an adjunct position in
the Department of Religion. The review and approval
process is not perfunctory. Candidates with un-
acceptable academic credentials are rejected. The
candidate indicates acceptance by countersigning the
letter of appointment and returning it to the Dean
of Liberal Arts.
The off-campus religious studies' courses are
included in U.T. Arlington's course schedules and
the College of Liberal Arts catalog. Courses
offered are subject to review by the College
Curriculum Committee. Students register for these
courses in the same manner as for other U.T.
Arlington courses using the sama tuition rates and
collection procedures. Tuition is retained by the
University. Semester credit hours generated for
off-campus religious studies courses are not counted
in the formulas used for state funding purposes.
Department of Religion faculty members assign course
grades and submit grade sheets in the same manner as
for courses taught by other U.T. Arlington faculty
members. Student appeals concerning the assignment
of a grade or other academic matters concerning the
off-campus religious studies courses are handled
through the office of the Dean of Liberal Arts and
the Vice President for Academic Affairs of The
University of Texas at Arlington.
The University of Texas at Austin. The University
of Texas at Austin gives degree credit for biblical
p. 3289
Mr. W. 0. Shultz II - Page 6 (JM-711)
studies courses offered by the Biblical Studies
Association (B.s.A.). This is an Association con-
sisting of instructors holding campus-area Bible
Chairs that are nominated and salaried by various
religious denominations. Courses are taught off-
campus in facilities provided by B.S.A. members.
Instructors nominated by the B.S.A. and the indivi-
dual course curricula must be reviewed and approved
by the Religious Studies Committee, composed of
College of Liberal Arts faculty members of the
University of Texas at Austin. The committee
conducts a review of the academic content of a
proposed course and the academic background of the
individual seeking to teach a biblical studies
course. Following conuaittee review, the academic
credentials and course materials are forwarded to
the Dean of the College of Liberal Arts who may
either request further review by the College of
Liberal Arts Course and Curriculum Committee or make
an immediate decision regarding approval. The
review and approval process is not perfunctory.
Candidates with unacceotable academic credentials
are rejected. Biblical Studies Association in-
structors are not given a U.T. Austin faculty title
or afforded usual employee benefits; however. they
are listed in the student/faculty/staff directory as
instructors and are given. faculty identification
The B.S.A. instructors assign course grades and
submit grade sheets through the College of Liberal
Arts in the same manner as for courses taught by
other U.T. Austin faculty members. A student
wishing to appeal a grade or other academic matter
dealing with a biblical studies course appeals to
the Chair of the Religious Studies Committee, the
Dean, the Executive Vice President and Provost
and the President of the University of Texas at
Austin.
Courses offered are listed in U.T. Austin course
schedules and the catalog for the College of Liberal
Arts. Students register for biblical studies
courses in the same manner as for other U.T. Austin
courses using the same tuition rates and collection
procedures. Tuition is retained by the University.
Semester credit hours generated for biblical studies
courses are not counted in the formulas used for
state funding purposes.
p. 3290
Mr. W. 0. Shultz II - Page 7 (JM-711)
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The University of Texas at El Paso. The University
of Texas at El Paso gives degree credit for religion
courses taught on campus in University classrooms
by individuals nominated by religious denomina-
tions. If paid, the teachers are paid by a
sponsoring religious denomination.
The individuals teaching religion courses are
organized into the Department of Religion and are
afforded office space on campus. The academic
credentials of individuals nominated to teach
religion courses are reviewed by the Department
of Religion faculty who forward a recommendation
to the Dean of Liberal Arts. The recommendation is
referred to the Religious Studies Advisory Com-
mittee, composed of regular U.T. El Paso faculty
members from various departments of the College of
Liberal Arts, for review of the academic credentials
of the nominee and further recommendation to the
Dean. If the Dean approves the recommendation, the
individual is appointed as a member of the faculty
of the Department of Religion with the title Adjunct
Professor. The review and approval process is not
perfunctory. Candidates with unacceptable academic
credentials are rejected.
The content of proposed courses must be reviewed by
the Department of Religion faculty and by U.T. El
Paso's Curriculum Committee. The committee may
approve, modify or reject a course proposal.
Members of the Department of Religion faculty assign
course grades and submit grade sheets in the same
manner as for courses taught by other U.T. El Paso
faculty members. A student wishing to appeal a
grade or other academic matter dealing with a
religion course appeals to the Dean of Liberal Arts
and the Vice President for Academic Affairs.
Religion courses are listed in U.T. El Paso course
schedules and the catalog of the College of Liberal
Arts. Students register for religion courses in the
same manner as for other U.T. El Paso courses using
the same tuition rates and collection procedures.
Tuition is retained by the University. Semester
credit hours generated for religion courses are not
counted in the formulas used for state funding
purposes. (Emphasis added).
The appointment process at the University of Texas at Arlington
and the University of Texas at El Paso clearly fall within Opinion
p. 3291
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Mr. W. 0. Shultz II - Page 8 (JM-711)
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.TM-352. The university identification granted to "Bible Chair"
instructors at the University of Texas at Austin raises the same
issue. No instructor who is nominated or salaried by a religious
organieation should be identified as a state college or university
instructor. Attorney General Opinion JM-352. The appointment to a
state position of a person nominated or salaried by a religious
organization is constitutionally prohibited regardless of the nature
of the courses taught by the person. This office has been assured
repeatedly that the primary concern of the religious studies community
is that some structure be found that will allow the "Bible Chair"
program to continue to receive elective credit from state colleges and
universities. It would be unfortunate if controversy over the
professional status of these outside religious studies instructors
were placed above the value of the programs to students. If state
colleges and universities do not wish to continue to grant credit for
those courses, nothing requires them to do so. They cannot, however,
claim that Opinion .I&352 compels them to refuse granting credit. The
appointment issue must remain distinct from the issue of granting
elective credit for courses offered by religious organizations.
As indicated, any program for granting elective credit for
religious studies courses offered by religious organizations must meet
a three-prong test: (1) the nature, intent, and purpose of the
courses must be secular: (2) the primary effect of the courses cannot
advance or inhibit religion; and (3) the courses must be offered in a
manner that avoids excessive entanglement. As a basic rule, these
tests can be met by assuring that religious studies courses taught by
individuals chosen and paid by religious organizations remain distinct
from university courses. For example, a recent University of Texas at
Austin catalogue describes these courses:
Credit toward University degrees is given for
courses offered by the Biblical Studies Associa-
m, under regulations intended to maintain the
-
equivalence of these courses with the courses in
The University of Texas at Austin.
. . . .
The instructors by whom the course credited
are given must (1) be under the control of some
permanent religious organization of recognized
standing; (2) possess
least at trainin
demanded of instructors in the University; (3)
devote their time primarily to teaching: and
(4) be approved by the standing cosnaittee-ofthe
College of Liberal Arts on Bible courses and by
the President.
The courses credited must be in the field of
Biblical studies and on a subject suitable for
p. 3292
Mr. W. 0. Shultz II - Page 9 (JM-711)
University instruction. The courses must be
thoroughly organized, with syllabi and regular
tests or examinations. and must be given in
regular classes with meetings at least equal in
number, in length of period, and in amount of
preparation required, to those of a University
course involving the credit asked. Biblical
studies courses are subject to the same regula-
tions and supervision as regular courses given in
the University. (Emphasis added).
This description indicates that these courses are -
not "courses in the
University of Texas."
The description in your request letter of the existing programs
for which credit is granted by the University of Texas System raises a
number of Establishment Clause questions. For example, if courses are
actually taught in a manner which has the primary effect of advancing
religion in general or of advancing a specific denomination, a state
college or university could not grant credit for the courses without
running afoul of the Establishment Clause.' Certain of the procedures
and details outlined in your letter also raise advancement and
excessive entanglement questions: the review by the university of
course content, the review by the university of the instructor's
qualifications, the manner in which the courses are described in the
university material, the manner in which tuition is charged, the
location at which the courses are taught, and the manner in which
grades 'are assigned and grade disputes are resolved. These problems,
however, are not insurmountable. For example, just because the
approval process for granting elective credit may involve university
review of the qualifications of the individual chosen by the religious
organization to teach religious studies courses does not mean that
this review is the equivalent of granting a religious organization
control over the selection of and supervisory control over a
university faculty member.
The key in avoiding excessive entanglement problems is in keeping
the outside courses distinct. As the United States Supreme Court
stated recently:
2. Information submitted in response to your request suggests
that some of the religious studies programs currently offered are of
impeccable academic quality. No individual or entity has submitted
any complaint to this office about the actual classroom conduct in
religious studies courses.
p. 3293
Mr. W. 0. Shultz II - Page 10 (JMY711)
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Government promotes religion as effectively when
it fosters a close identification of its powers
and responsibilities with those of any - or all
- religious denominations 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.
(Emphasis added).
Grand Rapids School District v. Ball, 105 U.S. at 3226; 53 U.S.L.W.
5006, 5010 (U.S. Jun. 25, 19851 (No. 83-990).
The Establishment Clause is an extraordinarily sensitive area of
constitutional law which involves complex issues of fact and law. In
Lemon v. Kurtaman. the Supreme Court cautioned:
Judicial caveats against entanglement must
recognize that the line of separation, far from
being a 'wall,' is a blurred, indistinct, and
variable barrier depending on all the circum-
stances of a particular relationship.
403 U.S. at 614. Ultimately, the question of whether granting credit
for particular religious studies courses violates the Establishment
Clause depends upon the facts in each individual case.
There exist no cases directly on point with regard' to religious
studies courses at state institutions of higher education. In Opinion
JM-352 this office indicated:
Institutions of higher education stand on somewhat
different footing from lower division schools
because college students are presumed to be less
impressionable and less susceptible to religious
indoctrination than are elementarv and secondarv
students. See Tilton v. Richardson, 403 U.S. 672;
685-86 (1971).
The fact that religious studies courses are voluntary at state
colleges and universities and that students must even exert a
great deal of initiative in seeking out these courses is also
highly relevant. Again, the ultimate question is one of degree - a
question which depends on all the circumstances involved in particular
religious studies courses.
The article 4399, V.T.C.S., opinion process was not designed to
resolve complex factual disputes. Some Establishment Clause questions
are so clear that they may be answered as a matter of law. Attorney
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Mr. W. 0. Shultz II - Page 11 (JM-711)
General Opinion JM-352 addressed such a question. A state college or
university cannot appoint to a college or university position an
individual who is nominated or paid by a religious organization. To
hold otherwise would also require upholding the reverse situation; it
would be akin to saying that the Constitution allows the state to
select or pay ministers or pastors of churches. This office cannot,
however, state as a matter of law that a state college or university
cannot constitutionally grant elective credit for religious studies
courses offered by religious organizations.
In fact, if they operate within constitutional guidelines, state
colleges and universities may constitutionally grant credit for
religious studies courses offered by religious organizations. State
colleges and universities have the responsibility to determine on
academic grounds whether to grant credit for such courses. You should
be aware, however, that if credit is granted for religious studies
courses, it must be done in a nondiscriminatory manner. All religious
studies courses must be examined in the same objective manner --
regardless of the religion. or particular denomination of a religion,
to which they relate.
SUMMARY
The Establishment Clause of the First Amendment
to the United States Constitution prohibits a state
college or university from appointing individuals
to a faculty position when the individuals are
nominated or salaried by a religious organization.
A religious organization cannot participate in
running state affairs.
A state college or university may offer liberal
arts courses on the non-proselytizing aspects of
religion. If a state college or university may
offer secular courses in religious studies, it would
be anomalous to determine that the college or
university could not grant elective transfer-type
credit for secular courses in religious studies
offered by religious organisations. If a state
college or university exercises its discretion to
grant elective credit for courses offered through
religious organizations, it must comply with consti-
tutional guidelines: (1) the nature. intent, and
purpose of the courses must be secular: (2) the
primary effect of the courses cannot advance or
inhibit religion; and (3) the courses must be
offered in a manner that avoids excessive en-
tanglement between government and religion. Whether
granting credit for particular religious studies
p. 3295
Mr. W. 0. Shultz II - Page 12 (~~-711)
courses violates the Establishment Clause dapends on
the facts in each individual case. The article
4399, V.T.C.S., opinion process was not intended to
resolve complex factual disputes.
Jzp&&
MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY RELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
p. 3296
Untitled Texas Attorney General Opinion
Combined Opinion