Opinion

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 03-0995

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HEB Ministries, Inc.,

Southern Bible Institute, and Hispanic Bible Institute, Petitioners,

v.

Texas Higher Education

Coordinating Board and Commissioner Raymund Paredes , Respondents

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Third District of

Texas

════════════════════════════════════════════════════

Argued January 5,

2005

Justice Wainwright , joined by

Justice Johnson , concurring in

part and dissenting in part, and concurring in the judgment.

Today the Court reaffirms the sacred principle that Americans have a fundamental

right to their religious beliefs. The United States Constitution prohibits the

government from interfering with this liberty, as the state has no authority to

regulate religious beliefs. I concur in the Court’s result on all issues

decided, some for different reasons, except one. I agree that the government

cannot dictate whether private religious institutions may call themselves

“seminaries” as the term admits primarily a religious connotation. Because the

training of clerics and teaching of religious doctrines at religious

institutions is inherent to religious beliefs, the State also cannot license

clerics or regulate their training. I also agree that the government may not

preclude religious institutions from employing virtually any useful terminology

to describe the postsecondary educational achievements of their students, but I

would hold, contrary to the plurality, that the State, within constitutional

limits, may require private educational institutions to comply with minimum

educational criteria before they may confer postsecondary degrees on their

students. A holding that the Legislature is barred by the U.S. Constitution from

setting minimum standards for the issuance of college and graduate degrees by

religious institutions, establishes a constitutional right for one type of

institution to issue postsecondary degrees regardless of compliance with public

standards. This holding precludes the Legislature from considering permissible

alternatives, such as allowing religious institutions to issue college degrees

with appropriate disclosures on their graduation documents indicating that their

degrees are not from state-certified programs (if, for example, they do not

include required minimum study in mathematics, science, humanites , written communication, basic computer

instruction, or other subjects). This would permanently tie the hands of the

Legislature, precluding it from considering constitutionally permissible

alternatives so that it may concurrently protect religious freedom while

ensuring that all private postsecondary degrees from Texas institutions

represent meaningful educational achievement. The Religion Clauses of the First

Amendment of the Constitution do not compel this result. The plurality’s logic

goes astray in melding the act of issuing a postsecondary graduation document

with the absolute right to religious beliefs, and fails to recognize that the

Legislature’s ensuring that all postsecondary degrees are meaningful

designations is not an improper targeting of Tyndale’s

religious beliefs. The government may not under the Constitution dictate which

religious institutions call themselves seminaries, whom they may hire to teach

and what curriculum they may teach, but calling a graduation document a

bachelor’s degree, instead of a bachelor’s certificate, is not an issue of

religious beliefs, notwithstanding Tyndale’s attempt

to conflate the two. I also concur with the plurality, for different reasons,

that religious institutions have the right to accurately label their graduation

documents, as the Free Speech Clause of the Constitution precludes the State

from broadly barring private postsecondary institutions from using virtually all

terminology that reasonably describes the educational attainment of their

students.

I

Background

Petitioner HEB Ministries, Inc. [1] is a non-profit

Texas

corporation and orthodox Christian church that operates, as one of its

ministries, the Tyndale Theological Seminary and Bible

Institute. [2] Tyndale

provides undergraduate and graduate level education to students in

ecclesiastical subjects such as theology, apologetics, and Christian studies,

and also provides general-education courses such as English grammar,

composition, and ancient world history. The Texas Higher Education Coordinating

Board fined Tyndale for using terms protected by the

Education Code in its name and for issuing some graduation documents to its 1998

graduates which, while not using the protected term “degree,” are advertised by

Tyndale as equivalent to a degree or as satisfying

part of a state-certified postsecondary degree program.

The Board fined Tyndale $3,000 for using the term

“seminary” in violation of section 61.313(a )( 1) of the

Education Code. [3] For “doctrinal reasons” and fear of

jeopardizing its “ecclesiastical rights,” Tyndale did

not seek a temporary certificate of authority from the Board, nor longer-term

accreditation from a state-approved accrediting agency. [4] Tyndale now

argues that the twenty-one state-mandated standards required for accreditation

or a certificate of authority are impermissibly

intrusive. See 19 Tex. Admin. Code § 7.7. For example, Tyndale claims that the regulation regarding faculty

qualifications would prohibit Reverend Billy Graham, Mother Teresa, the

Apostles, and a Jewish carpenter born in a manger from teaching at the

institution.

The

Board also fined Tyndale $170,000 for purportedly

issuing “degrees”—as statutorily defined—in violation of section 61.304 of the

Education Code. Section 61.304 prohibits private postsecondary institutions from

granting “degrees” without first obtaining a certificate of authority from the

Board or becoming accredited by a state-approved accrediting agency. Tex. Educ. Code § 61.304; see also

id . § 61.303(a) (exempting accredited institutions). “Degree” is broadly

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(1). None of the documents awarded by Tyndale at its 1998 graduation were actually titled

“degree,” but the Board alleges that Tyndale used

terminology on the documents and in brochure descriptions that bring the

documents within the broad definition of “degree” in section 61.302(1). Though

not evident from the statutory language, the Board now concedes that issuing

“diplomas” or “certificates,” without the protected words or brochure

descriptions, is not a violation of section 61.304.

In response to the Board’s fines, Tyndale filed this

lawsuit seeking a declaratory judgment that applicable sections of the Texas

Education Code are unconstitutional under the Free Speech, Free Exercise, and

Establishment Clauses of the First Amendment of the United States Constitution,

and under the Freedom of Worship Clause in Article I, section 6 of the Texas

Constitution. Both Tyndale and the Board filed motions

for summary judgment. In its ruling on these motions, the trial court upheld the

fines assessed against Tyndale for granting “degrees,”

under section 61.304, but vacated the fine for Tyndale’s use of the term “seminary,” under section

61.313(a )( 1), holding that the State’s regulation of

that term violated the First Amendment of the United States Constitution and

Article I, sections 6, 8, and 20 of the Texas Constitution.

The court of appeals reversed the trial court’s judgment allowing unregulated

use of the term “seminary” and rejected Tyndale’s Free

Exercise, Establishment Clause, and Free Speech challenges. 114 S.W.3d 617, 633-36 . The court of appeals affirmed the

trial court’s judgment with respect to the granting of degrees, holding that

section 61.304 does not violate the Establishment Clause, the Free Exercise

Clause, or Tyndale’s right to free speech. Id . at

628-29, 631-32.

II

Constitutional

Prohibition Against State

Regulation of

Religious Convictions

The Religion Clauses provide that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof.” [5] U.S. Const. amend . I. They apply to the states through the doctrine of

incorporation in the Fourteenth Amendment. Cantwell v.

Connecticut , 310 U.S. 296, 303

(1940). The Free Exercise Clause erects an unqualified prohibition

against government interference with beliefs. State v.

Corpus Christi People’s Baptist Church, Inc. , 683 S.W.2d 692, 695

(Tex.

1984). The Clause also protects certain conduct motivated by religious

beliefs. United

States v. Lee , 455

U.S. 252 (1982). Under the

Establishment Clause, the state may not prefer religion to irreligion or one

religion to others, nor may the government exhibit hostility towards religion.

Everson v. Bd. of Educ . of Ewing , 330 U.S. 1,

15-16 (1947); see also Bd. of Educ . of Kiryas Joel Village School Dist. v. Grumet , 512 U.S. 687, 703 (1994); Lee v. Weisman ,

505 U.S. 577, 609-16 (1992) ( Souter , J., concurring).

These constitutional principles guide the evaluation of the state regulations at

issue.

A. The Free Exercise Clause

The United States Constitution protects the free exercise of religion from undue

state infringement. U.S. Const.

amend I, cl . 2, amend XIV, § 1; Cantwell v.

Connecticut , 310 U.S. 296, 303 (1940); see also

Tex. Const. art. I, §§

6, 29. [6] The Free Exercise Clause of the First

Amendment protects religious freedom by ensuring that the freedom to hold

religious beliefs and opinions is absolute. Braunfeld v. Brown ,

366 U.S. 599, 603 (1961). This was

reiterated in Employment Division v. Smith , where the Supreme Court held

that “the First Amendment obviously excludes all ‘governmental regulation of

religious beliefs as such.’” 494 U.S. 872, 877, 879 (1990) (quoting Sherbert v. Verner ,

374 U.S. at 402 (1963)). The first issue

is whether the statutes at issue regulate religious beliefs. [7]

1. State Regulation of the Term “Seminary”

Section 61.313(a) of the Texas Education Code requires that all private

postsecondary educational institutions in Texas must submit to state regulation in order

to call themselves seminaries. Specifically, section 61.313(a)

provides:

Unless the

institution has been issued a certificate of authority under this subchapter, a

person may not: (1) use the term “college,” “university,” “seminary,” “school of

medicine,” “medical school,” “health science center,” “school of law,” “law

school,” or “law center” in the official name or title of a nonexempt private

postsecondary educational institution; or (2) describe an institution using a

term listed in Subdivision (1) or a term having a similar meaning.

Tex. Educ. Code § 61.313(a). To comply with

this section of the Education Code, Tyndale must

submit to twenty-one state-established standards. See id .; 19 Tex. Admin. Code § 7.7.

Tyndale complains that such state regulation violates

its rights under the Free Exercise Clause.

The State contends that its regulation of the term “seminary” is neutral and

generally applicable, and thus permissible under Smith . I disagree. The

State does not have the authority to determine whether a private postsecondary

educational institution that professes a sincere faith may call itself a

“seminary.” See Smith , 494 U.S. at 888 ; Hernandez v. Commissioner ,

490 U.S. 680, 699 (1989). Requiring

religious organizations to submit to state regulation in order to call

themselves seminaries is at odds with the Free Exercise Clause of the First

Amendment of the United States Constitution.

The Board argued in its briefing that the term “seminary” is not an “exclusively

religious” one, and the court of appeals apparently agreed. 114 S.W.3d at 633 . The Board contended, citing Church v.

Bullock , 109 S.W. 115 , 117 (Tex. 1908), that a seminary is a “place of

education” and only departs from this secular meaning when the adjectives

“theological” or “religious” are placed in front of it to take on the meaning of

“a place specifically for the preparation of men for the ministry, or at least,

for the teaching of religious doctrines.” In postsubmission briefing, the Board acknowledged that

“seminary” is a religious term but asserts that the term also conveys a secular

meaning.

Statutory interpretation begins with the plain and common meaning of the

statute’s words. McIntyre v. Ramirez , 109 S.W.3d 741,

745 (Tex.

2003). As enacted in 1975, section 61.313(a) only included the terms

“college” and “university.” Act of May 28, 1975, 64th Leg., R.S., ch . 587, § 1, 1975 Tex. Gen. Laws 1867 , 1870. The Legislature

added the term “seminary” in 1997, along with the terms “school of medicine,”

“medical school,” “health science center,” “school of law,” “law school,” and

“law center.” Act of May 9, 1997, 75th Leg., R.S., ch .

232, § 1, 1997 Tex. Gen. Laws 1147 , 1149. If “seminary” has a

predominantly secular meaning, as the Board contends, there is no reason for the

Legislature to add it to the list of protected terms, as the addition would only

repeat the statute’s reference to other secular educational institutions. We

presume that each word in the statute has meaning and that the Legislature added

seminary to the statute to include within the scope of the statute entities that

were not covered by other terms. See Perkins v. State , 367 S.W.2d 140, 146 (Tex. 1963). The inclusion of “seminary” added

religious institutions to the scope of the statute.

In addition, this Court has pondered the meaning of this word before. This Court

reasoned in Bullock that

“[ a ] seminary is a place of education . . . specifically a

school for the education of men for the priesthood or ministry.” A seminary

being a “place of education,” the adjectives “theological or religious”

necessarily give to it the meaning of a place specifically for the preparation

of men for the ministry, or at least, for the teaching of religious doctrines.

The words are commonly so used.

109 S.W. at 117 (quoting 25 Am. & Eng. Ency . Law, 286). In that case, this Court did not

hold that it was only when combined with the words “religious” or “theological”

that the word “seminary” took on the meaning proposed by HEB Ministries in this

case. See id . “Seminary” has a primarily religious connotation, and when

combined with the word “theological,” as in Tyndale

Theological Seminary, it has an exclusively religious meaning.

The court of appeals relied, in part, on the definition of “seminary” given in

Black’s Law Dictionary: “[a]n educational institution, such as a college,

academy, or other school.” Black’s Law

Dictionary 1392 (8th ed. 2004). Webster’s dictionary, however, defines

the same term as “an institution for the training of candidates for the

priesthood, ministry, or rabbinate.” Webster’s Third New International

Dictionary 2064 (1961). Even the Board acknowledges that Tyndale’s avowed purpose is to train ministers to work in

churches. In the context and usage of the statute, the word “seminary” included

in the State’s statutory scheme refers to institutions that provide religious

education, instruction, and training.

The United States Court of Appeals for the Fifth Circuit has held that, in some

circumstances, a seminary qualifies as a “church” for purposes of the

ministerial exception. EEOC v. Sw . Baptist Theological Seminary , 651 F.2d 277, 283 (5th

Cir. 1981). In Southwestern Baptist , the court observed that the

defendant seminary was an “integral part of a church, essential to the paramount

function of training ministers who will continue the faith.” Id . The court also

held that the seminary’s faculty qualified as “ministers” for purposes of the

exception because the faculty members were “intermediaries between the [Southern

Baptist] Convention and the future ministers of many local Baptist Churches.”

Id .

While seminarian policies and philosophies will differ among institutions,

see, e.g. , EEOC v. Miss. Coll. , 626 F.2d 477, 479 (5th Cir.

1990), Southwestern Baptist is instructive because it recognizes that

seminaries often function similarly to churches or other organized

congregations. The Board acknowledges that Tyndale’s

purpose is to train ministers to work in churches. Furthermore, their faculty

members may well be akin to church clergy in addition to providing general

educational instruction on secular subjects.

I conclude, as does the Court, that the word “seminary” admits a primarily

religious meaning, and now consider whether, consistent with the Free Exercise

Clause, the State may dictate which institutions may call themselves

seminaries.

The Supreme Court has espoused “a spirit of freedom for religious organizations,

an independence from secular control or manipulation, in short, power to decide

for themselves, free from state interference, matters of church government as

well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral of the Russian

Orthodox Church in N. Am. , 344 U.S. 94, 116 (1952) (declaring

unconstitutional a state law that granted ownership of church property to the

American branch of the Russian Orthodox Church). This “spirit of freedom” is

reflected in many of the Court’s decisions regarding state interference in the

internal affairs of churches and religious organizations. See, e.g. , NLRB v. Catholic Bishop of Chicago , 440

U.S. 490 (1979); Gonzalez v. Roman Catholic Archbishop of Manila , 280

U.S. 1 (1929).

In 1929, the Supreme Court refused to decide whether an individual was qualified

to be a chaplain in the Roman Catholic Church. Gonzalez , 280

U.S. at 17 . “Because the appointment

is a canonical act, it is the function of the church authorities to determine

what the essential qualifications of a chaplain are and whether the candidate

possesses them.” Id .

In Catholic Bishop of Chicago , the Supreme Court considered whether

church-operated schools were subject to the jurisdiction of the National Labor

Relations Board (NLRB). 440 U.S. at

491 . Although the Court ultimately concluded that Congress did not intend

to include church-operated schools within the purview of the National Labor

Relations Act, the Court admonished that such an exercise of jurisdiction would

raise “serious First Amendment questions” because the NLRB’s actions would “go

beyond resolving factual issues.” Id . at 502, 504. They would

necessarily involve inquiry into the good-faith of the

position asserted by the clergy-administrators and its relationship to the

school’s religious mission. It is not only the conclusions that may be reached

by the Board which may impinge on rights guaranteed by the Religion Clauses, but

also the very process of inquiry leading to findings and conclusions.

Id .

To decide which institutions are seminaries and which are not, the Board

necessarily would have to make judgments concerning which convictions,

doctrines, and faiths are religious in nature and which are not. Because Tyndale is HEB Ministries’ training institution for

ministries, the Board would have to consider whether the school is fulfilling

its religious mission to the ministry and if its teachings are sufficiently

“theological” in nature to be a seminary. For the government to determine

whether sincerely professed religious beliefs are actually secular is an

endeavor “fraught with the sort of entanglement that the Constitution forbids.”

Hernandez , 490 U.S. at 697 . This it cannot do.

See Catholic Bishop of Chicago , 440 U.S. at 502 .

Once a person professes a sincere religious conviction or faith, the person’s

right to her faith is protected by the Constitution and not subject to

governmental determinations that they are not religious in nature. See

id . The Board can no more prohibit a church from calling its school a

seminary than it can prohibit a religious congregation from calling itself a

church. HEB Ministries’ beliefs are protected by the Constitution from

government regulation.

Because the term “seminary” admits of a primarily religious meaning, the State

has no authority to prohibit Tyndale from using the

term in its title, and may not constitutionally require private postsecondary

institutions to submit to state regulation in order to do so. Accordingly,

section 61.313(a) of the Texas Education Code is unconstitutional to the extent

that it regulates this use of the term “seminary.”

The Court’s result is the same, but its reasoning is a bit different. It adds a

distinction between religious institutions that teach a primarily religious

curriculum and those which teach a secular curriculum. That distinction is

unnecessary. In my view, a religious institution may teach the curriculum it

desires, religious, secular, or mixed, and call itself a “seminary” without

first submitting to state regulation.

B. State Regulation of Issuance of Degrees by a Religious

Institution

Religious beliefs are immune from government regulation. See Cantwell v.

Connecticut , 310 U.S. 296, 303

(1940). Conduct motivated by religious beliefs also enjoys important

constitutional protection. See

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah , 508 U.S. 520, 531-33

(1993). However, the Supreme Court has held that religiously motivated

conduct is not always immune from state regulation. For example, states may ban

the taking of controlled narcotics as a religious practice. Employment Div. v. Smith , 484 U.S. 872 , 890

(1990). Government prohibition of the religious practice of polygamy is

not contrary to the constitutional right to religious freedom. Reynolds v. United

States , 98

U.S. 145, 164-66 (1879). The Amish are

required, as are other employees, to pay social security taxes even though their

faith precludes their participation in government support programs. United

States v. Lee , 455 U.S.

252, 258-61 (1982); see Cantwell , 310 U.S. at 303-04 .

And church-affiliated day care facilities generally are not exempt from

compliance with regulations to protect the health and safety of the children in

their care. State v. Corpus Christi People’s Baptist

Church , 683 S.W.2d 692, 696-97 (Tex. 1984). To implicate religious Free

Exercise Clause protections, the conduct at issue must be motivated by religious

beliefs, which underlies the debate over whether placing “Ph.D.” at the top of

graduation parchment is religiously motivated conduct. See Lukumi , 508 U.S. at 532 .

The Supreme Court has developed different levels of scrutiny to apply to state

regulations that burden religious conduct. Laws that target religious practices

are subject to the most rigorous constitutional scrutiny under religion clause

jurisprudence. Id . at

533. Such state burdens must be narrowly tailored to satisfy a compelling

governmental interest. Id . ; Smith , 494

U.S. at 878-79 . Laws that

substantially burden a person’s exercise of religion, even without expressly

targeting religious practices for regulation, are likewise subject to strict

scrutiny. Sherbert v. Verner , 374 U.S. 398, 402-03 (1963); Thomas v. Review

Bd. of the Ind. Employment Sec. Div. , 450 U.S. 707, 718 (1981) (“The state

may justify an inroad on religious liberty by showing that it is the least

restrictive means of achieving some compelling state interest.”); Hobbie v. Unemployment Appeals Comm’n of Fla. , 480 U.S. 136, 141 (1987) (“The Appeals

Commission does not seriously contend that its denial of benefits can withstand

strict scrutiny; rather it urges that we hold that its justification should be

determined under the less rigorous standard . . . . We reject the argument again

today.”). State action that does not target religion or substantially burden

religious conduct but only incidentally burdens religious practices may pass

constitutional muster if it is otherwise valid and does not impact religion

disparately, i.e., the laws are neutral and generally applicable. Smith ,

494 U.S. at 878 (“[I]f prohibiting the exercise of religion . . . is not the

object of the tax but merely the incidental effect of a generally applicable and

otherwise valid provision, the First Amendment has not been offended.”). The

Supreme Court rejected the argument that neutral and generally applicable laws

that incidentally burden religious practices are subject to strict scrutiny and

suggested that a reasonable relationship test determines whether they are

constitutional. See id . at 885-86 & n.3.

The Supreme Court established these standards in several cases over the years.

Although the opinions have been the subject of an active discussion in legal

publications, the Supreme Court’s pronouncements are binding until changed.

See Kathleen A. Brady, Religious Organizations and Free Exercise: The

Surprising Lessons of Smith, 2004 BYU L. Rev. 1633 (2004); Christopher L.

Eisgruber & Lawrence G. Sager, The

Vulnerability of Conscience: The Constitutional Basis for Protecting Religious

Conduct , 61 U. Chi. L. Rev.

1245 (1994); Douglas Laycock, Formal, Substantive, and Disaggregated

Neutrality Toward Religion , 39 DePaul L. Rev. 993 (1990); Douglas

Laycock, The Supreme Court and Religious Liberty , 40 Cath. Law. 25 (2000); Michael W.

McConnell, Free Exercise Revisionism and the Smith Decision , 57

U. Chi. L. Rev. 1109 (1990);

Michael W. McConnell & Richard A. Posner, An Economic Approach to Issues

of Religious Freedom , 56 U. Chi. L.

Rev. 1 (1989). In the seminal case of Sherbert v. Verner ,

the Supreme Court held that a substantial burden on the exercise of religious

beliefs is subject to strict scrutiny. 374 U.S. 398, 402-03

(1963). A member of the Seventh-day Adventist Church quit employment that

required her to work on her Saturday sabbath , and was

subsequently denied unemployment benefits for declining without “good cause” to

accept other employment that also required work on Saturday. Id . at

406. The Court framed the issue as “whether some compelling state

interest enforced in the eligibility provisions of the . . . statute justifies

the substantial infringement of the appellant’s First Amendment right.”

Id .

Finding no compelling governmental interest at issue,

the Court held that the denial of unemployment benefits violated the plaintiff’s

free-exercise rights. Id . at 406-07;

see Thomas , 450 U.S. at 718 .

In 1990, the Supreme Court addressed an incidental rather than substantial

infringement on religious conduct. Explicitly addressing for the first time

religious conduct restricted by a state criminal law of general applicability,

the Supreme Court in Smith applied a lower standard to the constitutional

challenge in that case than it did in Sherbert .

494 U.S. at 885-86 . Two members of

the Native American Church brought a free exercise challenge to an

Oregon law

criminalizing the “knowing or intentional possession of a ‘controlled substance’

unless the substance has been prescribed by a medical practitioner.” Id . at 874

(referring to Ore. Rev. Stat. § 475.992(4) (1987)). The

plaintiffs were discharged from their jobs for ingesting peyote, a “controlled

substance” under Oregon law, for sacramental purposes during a

Native American Church ceremony. Id . They claimed the Oregon law was

unconstitutional as applied to them because it interfered with their exercise of

religion. Id .

The Court reaffirmed that “first and foremost” the Free Exercise Clause means

“the right to believe and profess whatever religious doctrine one desires,” and

precludes “all ‘governmental regulation of religious beliefs as such.’”

Id . at 877 (quoting Sherbert , 374

U.S. at 402 ). Distinguishing

the regulation of religious beliefs from the regulation of conduct, the Court

observed that it has “never held that an individual’s religious beliefs excuse

him from compliance with an otherwise valid law prohibiting conduct that the

State is free to regulate.” Id . at

878-79. The right of free exercise “does not relieve an individual of the

obligation to comply with a ‘valid and neutral law of general applicability on

the ground that the law proscribes (or prescribes) conduct that his religion

prescribes (or proscribes).’” Id . at 879

(quoting Lee , 455 U.S. at 263

n.3 ). To require strict scrutiny of the criminal statute in the case

“would produce . . . a private right to ignore generally applicable laws . . .

[which] is a constitutional anomaly.” Id . at 886. The Court held that neither the text of the

Constitution nor Court precedent require that states allow use of a controlled

substance as a religious practice. Id . at 887-88.

The Court expressly declined to extend the strict scrutiny balancing test of

Sherbert to govern “the analysis of generally

applicable prohibitions of socially harmful conduct.” Id . at

889-90. Thus, the state need not establish a compelling interest to

institute incidental burdens on a person’s religious practices, so long as it

does so through a neutral and generally-applicable criminal law that does not

otherwise violate the Constitution. Id . [8]

The Court affirmed the holding in Smith three years later in Lukumi , 508 U.S. 520 . Lukumi involved a set of city ordinances that

prohibited the religious sacrifice of animals by the Santeria religion and

imposed criminal sanctions for their violation. Id . at 525-28. The Court reaffirmed “the general proposition

that a law that is neutral and of general applicability” and only

incidentally burdens religious practices need not be narrowly tailored to

advance a compelling government interest. Id . at 531-32. The city ordinances at issue were held

unconstitutional, however, because they were neither neutral nor generally

applicable but targeted the religious practices of the Santeria religion.

Id . at 541,

545-46.

In Lukumi , the Court observed that “if the

object of a law is to infringe upon or restrict practices because of their

religious motivation, the law is not neutral.” Id . at 533. Although passing facial review, the laws in question

were not neutral because Santeria worship was the “object” or “target” of the

city’s ordinances. Id . at

534-40. The Court determined that the “design” of the laws accomplished

“a religious gerrymander, an impermissible attempt to target petitioners and

their religious practices.” Id . at 535

(citation omitted).

Addressing the “general applicability” requirement, the Lukumi

Court observed that “government, in pursuit of

legitimate interests, cannot in a selective manner impose burdens only on

conduct motivated by religious belief” and that this principle “is essential to

the protection of the rights guaranteed by the Free Exercise Clause.” Id . at

543. Although the Court did not define the standard for general

applicability, the Court held that “these ordinances fall well below the minimum

standard necessary to protect First Amendment rights.” Id . In arriving at

this conclusion, the Court observed that the ordinances were vastly underinclusive and included many secular exemptions.

Id . at

543-46. Failing both the neutrality and general applicability prongs, the

Lukumi Court applied “the

most rigorous of scrutiny” to the City of Hialeah’s ordinances and held them

unconstitutional because they were “designed to persecute or oppress a

religion.” Id . at

547.

The parties disagree which level of scrutiny should apply to section 61.304 of

the Education Code. HEB Ministries contends that because the State’s regulatory

scheme provides for secular exemptions, but not religious ones, it is not

neutral and, accordingly, the statutory scheme must be analyzed under strict

scrutiny. See Lukumi , 508 U.S. at 537, 543-46 ; see also Fraternal Order

of Police Newark Lodge No. 12 v. City of

Newark , 170

F.3d 359, 363 (3d Cir. 1999). Specifically, HEB

Ministries points to section 61.303 of the Education Code, which exempts

some institutions from being required to have a Board-issued certificate of

authority if they have been accredited by a state approved accrediting agency.

HEB also cites section 61.313, which exempts some educational institutions from

the prohibition on protected terms if they used the terms “college” or

“university” in their title prior to September 1, 1975. Tex. Educ. Code §§ 61.303, 61.313. HEB

Ministries further contends strict scrutiny applies because this is a hybrid

rights case involving multiple constitutional claims, including claims based on

the Free Speech Clause, Free Exercise Clause, and Establishment Clause. See

Smith , 494 U.S. at 881 .

The State contends that section 61.304 is neutral and generally applicable, and

therefore under Smith , this Court must not apply the Sherbert strict scrutiny analysis. According to the

State, the laws at issue apply to all private postsecondary educational

institutions—religious and secular alike—that grant postsecondary academic

degrees. The State also contends there is no evidence that the object of the

statutory scheme was to infringe upon or restrict practices because of their

religious motivation or to suppress religious beliefs.

As explained in Lukumi , the beginning point is

the statute’s text, for the minimum requirement of neutrality is that a law not discriminate on its face. Lukumi , 508 U.S. at 533 . A law lacks facial

neutrality if it refers to a religious practice without a secular meaning

discernable from the language or context. Id . A facial reference to religion in a

statute does not necessarily render it presumptively unconstitutional, see

Locke v. Davey , 540 U.S. 712, 725 (2004), nor is facial

neutrality alone determinative. Lukumi , 508

U.S. at 533-34 . The Free Exercise

Clause, like the Establishment Clause, “forbids subtle departures from

neutrality,” Gillette v. United States , 401 U.S. 437, 452

(1971), and covert suppression of particular religious beliefs. Bowen v. Roy , 476 U.S. 693, 703 (1986) (opinion of

Burger, C.J.). Official action that targets religious conduct for

distinctive treatment cannot be shielded by mere compliance with the requirement

of facial neutrality. “The Court must survey meticulously the circumstances of

governmental categories to eliminate, as it were, religious gerrymanders.” Walz v. Tax Comm’n ,

397 U.S. 664, 696 (1970)

(Harlan, J., concurring); see Lukumi , 508

U.S. at 534 .

According to Tyndale , section 61.304 is

unconstitutional because it forces Tyndale to submit

to the State’s regulations in order to award college degrees to describe the

educational attainment of its students. See Nat’l Labor Relations Bd. v.

Catholic Bishop of Chicago , 440 U.S. 490, 502 (1979). Section 61.304

precludes private postsecondary institutions from awarding degrees unless the

Board has issued the institution a certificate of authority, and to obtain such

a certificate requires submission to the twenty-one standards governing

curriculum, faculty, and school governance. Tex. Educ. Code § 61.304.

The Legislature explained its purposes for enacting these requirements for

private postsecondary education institutions. “It is the policy and purpose of

the State of Texas to prevent deception of the public

resulting from the conferring and use of fraudulent or substandard college and

university degrees . . . .” Id. §

61.301. The Legislature also explained:

Because

degrees and equivalent indicators of educational attainment are used by

employers in judging the training of prospective employees, by public and

private professional groups in determining qualifications for admission to and

continuance of practice, and by the general public in assessing the competence

of persons engaged in a wide range of activities necessary to the general

welfare, regulation by law of the evidences of college and university

educational attainment is in the public interest. To the same end the protection

of legitimate institutions and of those holding degrees from them is also in the

public interest.

Id .

This Court recognized recently, quoting Brown v. Board of Education , 347

U.S. 483, 493 (1954), that “education

is perhaps the most important function of state and local governments.” Neely

v. West Orange-Cove Consol. Indep . Sch . Dist. , 176 S.W.3d 746, 799 (Tex.

2005). The United States Supreme Court held that Congress’

stated purpose in enacting the Higher Education Act of assisting colleges in

ensuring that large numbers of youth obtain educations is a “legitimate secular

objective entirely appropriate for governmental action.” Tilton v. Richardson , 403 U.S. 672, 679

(1971). The Supreme Court further explained that “[t]here is no doubt as

to the power of a State, having high responsibility for education for its

citizens, to impose reasonable regulations for the control” of education.

Wisconsin v. Yoder , 406 U.S. 205, 213 (1972); see also Lemon v. Kurtzman , 403 U.S. 602 (1971); Pierce v. Soc’y of Sisters , 268 U.S. 510, 534

(1925). And the New Jersey Supreme Court held that the privilege of granting

degrees, evidential of academic achievement, is “very intimately related to the

public welfare, and is unquestionably subject to regulation by the State.”

Shelton Coll. v. State Bd. of Educ . , 226 A.2d

612, 618 (N.J. 1967) (quoting Elliott,

The Colleges and the Courts 200 (1936)). The purpose of ensuring the

quality of postsecondary education provided by institutions in this State and

protecting the integrity of college degrees issued therefrom is plainly within the State’s substantial interest

in education.

The Legislature’s objective is to ensure that the granting of a degree is a

meaningful act grounded in established curricular and instructional standards

and that persons who rely on a postsecondary degree, lawfully issued by a

Texas

institution, may accurately presume a level of competence and qualification.

See Tex. Educ.

Code § 61.301. The

Legislature enforces this objective in education, an area in which it has a

substantial and legitimate interest. See Yoder , 406 U.S. at 213 ;

Neely , 176 S.W.3d at 753 . Moreover, all postsecondary institutions,

whether secular or religious, private or public, must submit to the State’s

standards to grant college or graduate degrees. See Tex. Educ. Code §§ 61.0512, 61.304; 19 Tex. Admin. Code § 7.7(13) (requiring certain degree

programs at private postsecondary institutions to include “Humanities and Fine

Arts, Social and Behavioral Sciences, and Natural Sciences and Mathematics” as

well as “courses to develop skills in written and oral communication”). An

institution may operate outside those standards if it chooses to use

nomenclature on its graduation documents other than college or graduate degrees

(e.g., bachelor’s level certificate), but to issue degrees it must comply with

public standards. There is no disparate treatment of any category of

institutions.

The law here is neutral and generally applicable and prohibits the unauthorized

issuance of college and graduate degrees, currently enforced by both civil and

criminal penalties. The Supreme Court held in Smith that individuals must

comply with valid laws prohibiting conduct that the State is free to regulate.

494 U.S. at 878-79 . In this case,

I do not believe the Constitution bans states from promulgating generally

applicable standards that must be met before postsecondary institutions may

confer degrees on its students. [9]

The Office of the Attorney General for the State of Texas has opined on this

very issue: whether rights under the Free Exercise Clause permit a religious

organization to operate a degree-awarding university without compliance with

state standards. Op. Tex. Att’y Gen. No. JC-0200

(2000). Attorney General John Cornyn concluded

that “the application to religious educational institutions of state laws

regulating the awarding of degrees does not violate the law restricting

governmental burdens on the free exercise of religion. Id . [10]

The only other state supreme court to address this

issue also reached the same outcome. The Tennessee Supreme Court held that the

Tennessee Postsecondary Education Authorization Act’s prohibition on the

issuance of degrees by postsecondary institutions, unless they complied with

state standards, did not violate the Free Exercise Clause of the First

Amendment. McLemore v. Clarksville Sch . of Theology ,

636 S.W.2d 706 (Tenn. 1982). It held that the granting

of degrees is “unquestionably subject to regulation by the State” and is not a

religious activity. 636 S.W.2d at 709 ; see Shelton Coll. v. State Bd. of

Educ . , 226 A.2d 612 (N.J. 1967) (rejecting a claim

that the First Amendment right of free speech prohibited the state from

regulating the power to confer a bachelor’s degree).

To the extent an institution desires to enter into this sphere of legitimate

state regulation—e.g., the granting of college, university, and graduate degrees

by private postsecondary educational institutions—it must comply with state

mandates that are not unnecessarily intrusive and are prompted by legitimate

objectives. See Smith , 494 U.S. at 878-79 ; Lee , 455

U.S. 252, 261 (1982). A contrary

conclusion would allow entities, regardless of their motives, to circumvent the

statutory requirements under the guise of religious practices by issuing degrees

supported by little or no meaningful educational attainment. This would

undermine the legitimate objectives of precluding issuance of fraudulent degrees

and ensuring that society could rely on the attainment of a college degree as

evidence of meaningful postsecondary educational accomplishment.

Because in this case Tyndale is engaging in commercial

conduct the State is free to regulate—the granting of educational “degrees,”

“associate degrees,” “bachelor’s degrees,” “master’s degrees,” and “doctorate

degrees,”—I conclude that section 61.304 of the Education Code does not offend

the Free Exercise Clause of the United States Constitution. See id. at 878-79; Lukumi , 508

U.S. at 531-33 .

The plurality concludes that Tyndale has a

constitutional right to issue college and graduate degrees without compliance

with the Legislature’s standards. Of course, Tyndale

does not frame its case in this fashion because the idea in this context that

only one type of postsecondary institution, a seminary, has an unfettered

constitutional right to put the title “college degree” at the top of its

graduation documents, without regard to compliance with public standards, is a

tenuous notion. Instead, Tyndale enmeshes its argument

on this issue with the bedrock principle that the State cannot regulate the

doctrinal beliefs and teachings of a church’s school. Wrapped in this

theological flag, Tyndale’s arguments then focus on

religious beliefs and bury the real issue of the appropriate words to title a

graduation document beneath it. I disagree that the Constitution bars the

Legislature from establishing generally applicable standards for the granting of

postsecondary educational degrees. This question concerns conduct—whether Tyndale can put “college degree,” with no disclaimer or

explanation that it does not comply with public standards at the top of its

graduation documents. No one, including the Board, disputes Tyndale’s right to believe and teach whatever it chooses and

hire whomever it desires to do so.

Of course, it sounds patently offensive to religious freedoms to assert that the

State is barring Mother Teresa and Reverend Billy Graham from teaching at a

seminary, and if correct, it would be. But doctrine and instruction are not

tantamount to stamping a title on a piece of parchment handed out at graduation.

Governments cannot regulate what a seminary teaches, who it hires to teach, or

how its administration is structured. These matters are central to the

seminary’s beliefs and convictions, and the freedom to believe as one chooses is

absolute. See Braunfeld v. Brown , 366

U.S. 599, 603 (1961). Typing the

letters “Ph.D.” on a parchment is an act that is not inherent to Tyndale’s religious beliefs or engaged in for religious

reasons, and should not be accorded constitutional protection under the religion

clauses. See Smith , 494 U.S. at 877 . The Legislature could

decide to allow it, but the Constitution does not require it. The plurality

strains to persuade that because the Board does not allow Tyndale to confer degrees without compliance with the

statutes, that it is dictating the doctrine that may be taught at the seminary.

I remain unconvinced. [11] Tyndale ,

however, is correct that it should be able to use meaningful designations on

“official looking paper” to convey what it believes to be substantial

educational achievement. ( See infra, Section III). This does not require,

as the plurality concludes, creation of a constitutional right of religious, but

not non-religious, postsecondary institutions to issue college and graduate

degrees. Although different from this case, the plurality’s reasoning would

grant a constitutional right to a religious group to confer a doctor of

philosophy degree on a graduation parchment after providing an hour of

instruction.

The Education Code’s broad definition of the term “degree” precludes use of many

words similar to “degree.” Tyndale asserts that

section 61.304 of the Education Code, by virtue of the definition of “degree” in

61.302(1), regulates virtually all useful terminology that it may use to convey

the educational achievement of its students. Although I believe that the

granting of degrees is conduct the Legislature may regulate, the State’s attempt

to regulate Tyndale’s use of any language suggesting a

similar or competing level of educational competency also must be valid under

the Free Speech Clause of the First Amendment.

III

Free Speech

HEB Ministries contends that the State’s regulatory scheme violates its rights

to free speech under the First Amendment of the United States Constitution

because the State has usurped virtually all terms it could reasonably use to

describe the educational achievement of its students. See U.S. Const. amend . I, cl . 3 (“Congress shall

make no law . . . abridging the freedom of speech . . . .”); Tex. Const. art. I, § 8 (“Every person

shall be at liberty to speak, write or publish his opinions on any subject,

being responsible for the abuse of that privilege; and no law shall ever be

passed curtailing the liberty of speech or of the press.”). The State, in

contrast, asserts that the speech at issue is commercial speech and, pursuant to

federal constitutional law, the State has a substantial interest in curtailing

the proliferation of diploma mills and assuring that indicia of educational

attainment are accurate, and that the challenged statutes directly advance that

governmental interest. HEB contends that, even if the speech at issue is

commercial, the State must still show that the speech restrictions are narrowly

drawn to serve that substantial interest. Tyndale’s

contention is that the State’s regulation of any title, word, appellation, and

other terminology not only “equivalent” to degree but suggesting a course of

study toward a postsecondary degree or “its equivalent” is an unconstitutionally

broad prohibition on Tyndale’s free-speech rights.

The court of appeals agreed with the State that its regulation of the terms

“degree,” “associate,” “bachelor,” “master,” “doctor,” and other “equivalents”

in sections 61.304 and 61.302(1) targets commercial speech. 114 S.W.3d at 631-32 . The Supreme Court’s case law confirms

that determination. Commercial speech is speech that seeks to propose a

commercial transaction or is expression that serves the economic interests of

the speaker. Bd. of Trs . v. Fox , 492

U.S. 469, 473 (1989); Bolger v.

Youngs Drug Prods. Corp. , 463 U.S. 60, 64 (1983);

Cent. Hudson Gas & Elec. Corp. v.

Pub. Serv . Comm’n ,

447 U.S. 557, 561 (1980);

Va. State Bd. of Pharmacy v. Va. Citizens Consumer

Council, Inc. , 425 U.S. 748, 762

(1976). The First Amendment’s protection of commercial speech

is based on advertising’s informational function, which equips persons to act in

their own best interests. Cent. Hudson ,

447 U.S. at 562-63 . To help fulfill this

goal, there is a “constitutional presumption favoring disclosure over

concealment,” because “disclosure of truthful, relevant information is more

likely to make a positive contribution to decisionmaking than is concealment of such information.”

Peel v. Attorney Registration & Disciplinary Comm’n , 496 U.S. 91, 108, 111 (1990); see Ibanez v.

Fla. Dept. of

Bus. & Prof’l Regulation , 512 U.S. 136, 142

(1994). The First Amendment presumes that some accurate

information is better than no information at all. Cent. Hudson , 447 U.S. at 562 . On

this basis, the Supreme Court held that use of the designations CPA (certified

public accountant) and CFP (certified financial planner) are commercial speech.

Ibanez , 512 U.S. at 143-44 . The terms “Dr.” and

“Ph.D.” have also been held to be commercial speech. Strang v. Satz , 884 F. Supp. 504, 507 (S.D. Fla. 1995). The

title “M.D.” has also been analyzed under the commercial speech doctrine. State ex rel . State Bd. of Healing Arts v. Thomas ,

97 P.3d 512 , 523-24 (Kan. Ct. App. 2004). The conferral of degrees is

largely a commercial activity and a privilege granted to institutions by the

states in which they operate. See Nova Univ. v. Educ . Inst. Licensure Comm’n ,

483 A.2d 1172, 1181 (D.C. 1984) (“degree conferral is business conduct, a

corporate privilege conferred by the state of incorporation,” and accordingly,

“[e] ducational institutions have no inherent or

constitutional right to confer degrees”). Courts have treated the display of

terms such as “fellow,” “associate fellow,” “board certified,” “certified,” and

“specialist” as commercial speech. See Borgner v. Brooks , 284 F.3d 1204, 1207, 1210

(11th Cir. 2002) (relying upon the Eleventh Circuit’s treatment of the title

“psychologist” in Abramson v. Gonzalez , 949 F.2d 1567, 1574-75 (11th Cir.

1992)); Potts v. Hamilton , 334 F. Supp. 2d 1206, 1209, 1213-15 (E.D. Cal.

2004); Bingham v. Hamilton , 100 F. Supp. 2d 1233, 1234-35, 1239 (E.D.

Cal. 2000) (all three cases involve statutes prohibiting dentists, who

specialize in implant dentistry and are certified by organizations not

recognized by the state, from advertizing certain

credentials).

Tyndale provides educational and ministerial training

courses to its students and the students pay tuition and fees. Tyndale’s conferral of titles on its graduating students and

advertisement of information about degrees it awards to graduating students is

commercial speech.

Restrictions on commercial speech are reviewed under the test established in

Central Hudson , 447 U.S. 557 . The Constitution “accords a

lesser protection to commercial speech than to other constitutionally guaranteed

expression.” Id . at

563. The State may ban commercial speech which concerns unlawful activity

or is false, deceptive, and misleading. Ibanez , 512

U.S. at 142 ; Cent.

Hudson , 447 U.S. at 566 . Otherwise, commercial

speech may not be restricted unless 1) the government has a substantial interest

in restricting the speech, 2) the regulation directly advances the asserted

governmental interest, and 3) the speech restrictions are narrowly drawn such

that they are no more extensive than necessary to serve that interest. Cent. Hudson , 447 U.S. at 566 . The

Court clarified in Fox , 492 U.S. at 480 , that the requirement of

narrowly constructing the restriction does not compel the state to employ the

restriction that is “absolutely the least severe that will achieve the desired

end.” The law requires that the restriction of commercial speech be in

proportion to the interest served. Id . The proponent of the restriction on

commercial speech carries the burden of justifying it. Edenfield v. Fane , 507

U.S. 761, 770 (1993).

The parties do not dispute that the speech at issue concerns lawful activity and

the Board does not contend that the expression is false. The State contends only

that it seeks to regulate Tyndale’s potentially

deceptive speech. As previously observed, the State’s interest in ensuring the

quality of postsecondary educational institutions that issue degrees in this

state is substantial. And Tyndale does not contest

that the State has a substantial interest in regulating private postsecondary

education, or that the State may endeavor to assure that degrees accurately

portray educational attainment and to prevent the operation of illegal diploma

mills. I consider the other two prongs of the test for permissible regulation of

commercial speech and determine whether sections 61.304 and 61.302(1) of the

Education Code directly advance the State’s interest, and whether narrower

limitations could be crafted to ensure the potentially misleading information is

presented in a nonmisleading manner.

Restricting an unaccredited institution’s ability to award degrees directly

advances the State’s interest because

degrees and equivalent indicators of educational attainment

are used by employers in judging the training of prospective employees, by

public and private professional groups in determining qualifications for

admission to and continuance of practice, and by the general public in assessing

the competence of persons engaged in a wide range of activities necessary to the

general welfare.

Tex. Educ. Code § 61.301. The Legislature may

also address conduct that attempts to accomplish indirectly that which is

prohibited directly in the statute. Thus, for example, the State may preclude an

institution that does not meet its standards from lawfully calling its

graduation documents master’s degrees yet representing through other means that

“certificates” it issues have complied with the State’s educational standards

for a master’s degree.

Tyndale responds that the State’s nearly complete

usurpation of reasonable terms to describe postsecondary educational attainment

is not tailored to directly serve the State’s objectives. Unless certified by

the Board, the statute bars a postsecondary institution’s use of “ any

title or designation, mark, abbreviation, appellation, or series of letters or

words, including associate, bachelor’s , master’s,

doctor’s, and their equivalents ” to describe private postsecondary

achievement which leads to a degree or partially fulfills a degree program “or

its equivalent.” Id . § 61.302(1) (emphasis added). The

State responds that HEB could issue “certificates,” “advanced certificates,”

“diplomas,” or “higher diplomas” so long as it refrains from describing them as

equivalent to an associate’s, bachelor’s , master’s, or

doctor’s degree. The State also contends that the statutes are narrowly tailored

because HEB Ministries is still free to advertize its

qualifications, services, and missions, so long as it does not use the protected

terms—degree, associate, bachelor’s, master’s, and doctor’s—that suggest

approval by the State and satisfaction of minimum educational standards that

society has come to expect of these terms. The State also argues the statutes

are narrowly tailored because Tyndale could not be

fined for, and would not be prohibited from issuing, for example, a “diploma” or

“certificate” because these terms by themselves do not signify, purport to

signify, and are not generally taken to mean “a program of study leading to an

associate, bachelor’s, master’s, or doctor’s degree or its equivalent.” [12] See id .

A plain reading of the statute conveys a much broader prohibition than the Board

concedes. First, under the statute a “degree” includes the protected terms

associate, bachelor’s, master’s, doctor’s and degree. Id . Generally, the

definition requires that for protected words or titles to trigger state

regulation, they be described or perceived as leading to a degree at the

associate, bachelor’s, master’s or doctorate level.

The Board asserts that an institution must be certified to use any of these

protected terms by themselves because they suggest and are generally understood

to indicate that a recipient completed part or all of a program leading to a

degree. The statutory language indeed extends that broadly. Second, the statute

also defines a “degree” to include any word, title, designation, series of

letters, or similar terminology to the protected terms that suggest study toward

a state-recognized degree. Further extending the scope of the statute, the

Legislature barred use of “any title,” “designation,” “words,” “mark,” “series

of letters,” or “appellation” that conveys study leading to a degree, or any

similar posteducational achievement. Id . The language

of 61.302(1) encompasses virtually every term that could reasonably provide a

useful description of educational achievement at a postsecondary educational

institutional. The legislation bans unapproved programs from using any of the

protected terms, any words, letters, or titles that are similar to the protected

terms and any words that suggest a program leading to a college or graduate

degree or any words that are similar to the titled programs. The language of

section 61.302(1) supports the Board’s fines for use of the word “diploma” and

“certificate” and provides a basis for fining unaccredited institutions for

using the phrases “bachelor’s level diploma” and “comparable to an associate’s

degree.” The statute impermissibly bars Tyndale from

issuing a master’s level certificate or an associate’s level diploma, terms

which do not convey state certification of a degree, but do convey postsecondary

education accomplishment. A majority of the Court decides that for religious

instruction by religious schools, the regulation of educational terminology

under the statute’s broad definition of degree violates constitutional

standards. ____ S.W.3d ____. (In Section III.C., the

plurality states that “the use of any words remotely resembling ordinary

education terms is risky”). [13] The appellations that the public

understands to indicate college and graduate level study would all be equivalent

or similar to the protected terms and “their equivalents.”

The Board’s concession that Tyndale may use

“certificate” or “diploma” on its graduation documents without state approval is

not helpful. Under the statute, the words “diploma” and “certificate” certainly

are “titles,” “words,” or “appellations” and they are similar to the protected

term “degree.” Thus, by its terms the statute bars any use of “diploma” and

“certificate” that may indicate completion of all or part of a program leading

to a degree. However, even if the Board’s concession is correct under the

language of the statute, the concession is not useful without being able to tie

the terms “diploma” or “certificate” to some description of a recognized or

similar level of postsecondary educational attainment, and the statute precludes

making that connection. For example, Tyndale could

likely issue a “diploma of theological studies” which would not convey its

apparent belief that its program is comparable to college level course work

because diplomas generally are issued at the high school educational level.

See Brief for Independent Colleges and Universities of Texas, Inc.

as Amicus Curiae at 12-13 (explaining that there is a public perception that a

degree qualifies an individual to perform in their chosen field of study.) [14] If Tyndale

issued a “diploma of bachelor’s level studies”, which would more accurately

convey its contentions about its program, that title would violate the statute.

The Board concedes the use of terms that would not allow Tyndale to accurately describe its belief about the level or

quality of it programs. The Board’s concession does not resolve the free speech

problems Tyndale raises.

Section 61.302(1)’s prohibitions on First Amendment expression further preclude

private postsecondary educational institutions from advertising comparisons with

state-certified institutions. For example, the Board objects to Tyndale’s description of its Diploma of Theological Studies

as “stronger . . . than the typical Bachelors in Biblical Studies.” Such a

description suggests that Tyndale’s program is better

than state-certified Bachelor’s Degree programs. [15] Fining private institutions for making

legitimate comparisons that their programs are similar to or better than

state-certified programs leading to a degree does not equip persons to act in

their own interests. Instead, it punishes institutions for disclosure of

truthful, relevant information that is likely to make a positive contribution to

decision making. See Peel , 496 U.S. at 108 ; Cent. Hudson , 447

U.S. at 567-68 . This restriction

contradicts the First Amendment’s purpose for commercial speech.

Moreover, the applicable portions of sections 61.304 and 61.302(1) operate as a

ban on not only potentially misleading speech but also on truthful speech. Tyndale issued diplomas and certificates which may be as

good as or better than some state-certified programs, and other private

institutions, whether religious or nonreligious, would have the same complaint

that legitimate comparisons are being improperly silenced. The regulation is

more extensive than necessary to serve the State’s legitimate interests. Under

61.302(1), Tyndale cannot use any terms that are

similar to the protected terms, and it cannot describe its programs as similar

to or better than state-approved programs leading to a

degree. The statute cuts an impermissibly broad swath through protected

commercial speech.

As previously stated, the standard for judging restrictions on commercial speech

is that the restriction be in proportion to the interest served. Fox , 492

U.S. at 480 . The availability of more

limited alternatives that are less restrictive of speech is strong support for a

conclusion that the regulation does not directly advance the desired goal. Thompson v. W. States Med. Ctr. , 535 U.S. 357, 371

(2002). The Supreme Court’s analysis indicates that courts should inquire

whether the government could achieve its interests in a manner that does not

restrict speech or is less restrictive of commercial speech. Id . The answer to

this inquiry will help illuminate whether the regulation directly advances the

governmental interest and is more extensive than necessary to serve that

interest. Id . at 371, 373 (noting that “we have made clear that if the

Government could achieve its interests in a manner that does not restrict

speech, or that restricts less speech, the Government must do so” and that even

with commercial speech, “regulating speech must be a last—not first—resort.”).

Tyndale notes that narrower limitations could achieve

the Legislature’s desired objectives by requiring, for example, reasonable

disclaimers or disclosures that certificates and diplomas Tyndale may issue are not approved by the State and that

Tyndale itself is not accredited by the State. The

Supreme Court has recognized “the possibility that some limited supplementation,

by way of warning or disclaimer or the like, might be

required” rather than a ban on commercial speech. Bates , 433 U.S. at 384; see, e.g. , Peel , 496

U.S. at 110 (providing similar

disclosure examples); Cent. Hudson , 447 U.S. at 570

(holding the state’s interest could be addressed by including accurate

descriptive information rather than banning the speech); Strang , 884 F. Supp. at 510 (holding the same with

respect to statute that prohibited use of “Ph.D.” or the title “doctor” unless

obtained from an institution recognized by the state). Such measures may achieve

the State’s desired objective and be more likely to provide useful and accurate

information to contribute to the public’s decisionmaking than would banning

all such information from the institution. See Ibanez , 512

U.S. at 142 . [16] In the present context, reasonable

disclaimers regarding the theological certificates and diplomas could serve to

better inform the public of Tyndale’s students’

educational achievements than would a complete ban on their ability to

accurately describe such achievements. The Education Code currently includes

such a disclosure for the granting of honorary degrees. Tex. Educ. Code § 61.312. Thus, I conclude

the State has not carried its burden of showing that its regulation of this

commercial speech directly advances its interest because the regulation is more

extensive than necessary to serve the Legislature’s legitimate purposes. See

Cent. Hudson , 447 U.S. at 570 .

IV

Conclusion

Accordingly, I would reverse the court of appeals judgment and vacate the fines

assessed by The Texas Higher Education Coordinating Board against HEB

Ministries.

________________________________________

J. Dale Wainwright

Justice

OPINION

DELIVERED : August 31, 2007

[1]

HEB Ministries is unrelated to the H.E. Butt Grocery Company, which is also

commonly referred to as “HEB.”

[2]

Because their interests are aligned, I use the terms “HEB” and “ Tyndale ” interchangeably.

[3]

Section 61.313(a)(1) prohibits a private postsecondary educational institution

from using the term “seminary” in its official name unless the entity first

obtains a certificate of authority from the Board or becomes accredited by a

state-approved accrediting agency. Tex.

Educ. Code § 61.313(a )( 1); see also id . §

61.303(a) (exempting accredited institutions).

[4]

The court of appeals stated that “ Tyndale has

steadfastly refused to participate in any of the alternative processes available

under the statutory oversight plan.” 114 S.W.3d at 630 .

Tyndale has, however, along with seven other

unaccredited religious schools, endeavored to create its own accrediting agency,

which the State does not recognize at this time.

[5]

The Texas Constitution is more explicit in its protection of the freedom to

worship. “All men have a natural and indefeasible right to worship Almighty God

according to the dictates of their own consciences.” Tex. Const. art. I, §

6. The issues are briefed under the U.S. Constitution with reference to

analogous provisions in the Texas Constitution. The plurality concludes that the

Texas Constitution is “coextensive” on the issues raised. As neither party

addresses in substance the application of the Texas Constitution to these issues

and neither asserts any difference in the jurisprudence between the two

constitutions, I would “limit our analysis to the First Amendment and simply

assume that its concerns are congruent with those of [the Texas Constitution].”

See New Times, Inc. v. Isaacks , 146 S.W.3d 144, 150 (Tex. 2004).

[6]

The Free Worship Clause of the Texas Constitution provides in its entirety:

All men have a natural and indefeasible right to worship

Almighty God according to the dictates of their own consciences. No man shall be

compelled to attend, erect or support any place of worship, or to maintain any

ministry against his consent. No human authority ought, in any case whatever, to

control or interfere with the rights of conscience in matters of religion, and

no preference shall ever be given by law to any religious society or mode of

worship. But it shall be the duty of the Legislature to pass such laws as may be

necessary to protect equally every religious denomination in the peaceable

enjoyment of its own mode of public worship.

Tex. Const.

art. I, § 6.

[7]

The Establishment Clause cases consider whether some form of government aid,

either direct or indirect, improperly entangles the government in religion.

Walz v. Tax Comm’n , 397 U.S. 664, 670-75 (1970); see also Church

of the Lukumi Babalu Aye,

Inc. v. City of Hialeah , 508 U.S. 520, 532 (1993). In this case, HEB does

not challenge government aid or support of religion or religious symbols but

complains of state regulation of its activities. The Supreme Court decided in

Lukumi that because the dispute raised a

question of the freedom to worship in the face of governmental regulation,

rather than governmental efforts to benefit or favor religion, the Free Exercise

Clause was dispositive . 508 U.S. at 532 ;

see also People’s Baptist , 683 S.W.2d at 695 .

[8]

Distinguishing its prior holdings in Free Exercise Clause cases, the Supreme

Court stated that the “only decisions in which we have held that the First

Amendment bars application of a neutral, generally applicable law to religiously

motivated action have involved not the Free Exercise Clause alone, but the Free

Exercise Clause in conjunction with other constitutional protections, such as

freedom of speech and of the press.” Smith , 484

U.S. at 881 (citing, among

others, Cantwell , 310 U.S. at 304-07 ; Murdock v.

Pennsylvania , 319 U.S. 105 (1943); and Wisconsin v. Yoder , 406 U.S.

205 (1972)). The Court determined that Smith did not present a

“hybrid rights” case, and therefore did not elaborate on the

exception.

[9]

The Southern Baptist Convention’s theological seminary agrees that pursuant to

its constitutional interest in education, the State may “forbid institutions

from using the words ‘bachelor’s degree,’ ‘master’s degree,’ etc., unless

certain defined program requirements are satisfied.” Brief for

Southwestern Baptist Theological Seminary as Amicus Curiae at 14.

[10] The Attorney General’s opinion considered

the Supreme Court’s free exercise jurisprudence. A Texas statute required

application of the strict scrutiny test for substantial government burdens on

religious practices. Tex. Civ. Prac.

& Rem. Code § 110.001

et seq. This mimicked the standard required by the Supreme

Court in Sherbert v. Verner , 374 U.S. 398 (1963). Although I do not think the

result here would change if the statute applied, the statute is inapplicable as

its effective date was after the accrual of the cause of action in this case.

See Tex. Civ. Prac. & Rem. Code § 110.001 et

seq.

[11] The plurality’s rationale is in tension

with the Supreme Court’s Smith and Lukumi decisions.

[12] Webster’s Dictionary defines “equivalent as

similar or alike in significance or import.” Webster’s Third New International

Dictionary 769 (1961). The Oxford Dictionary defines “equivalent”

as having equal or corresponding import or meaning. The Oxford Illustrated Dictionary 283 (2nd

ed. 1975).

[13] We disagree on which constitutional

provisions are infringed. I would base the decision on commercial speech rights,

and the plurality would decide this point under the Free Exercise

Clause.

[14] The Independent Colleges and Universities of Texas, Inc.

is a nonprofit association of the State’s accredited private colleges and

universities. It represents the majority of the State’s private undergraduate

institutions.

[15] If the description indicated that Tyndale’s program in theological studies was certified by

the State, the speech would be false and subject to legitimate

regulation.

[16] Some states have adopted this scheme and

allow unaccredited religious institutions to grant degrees if certain disclosure

requirements are met. See, e.g. , Fla. Stat. § 1005.06(f )( 3); Md. Code

Educ. § 11-202(c )( 2).