# Opinion

> Texas Supreme Court · August 31, 2007

URL: https://www.frixlaw.com/law-library/cases/2833983

## Case

- **Full name:** Heb Ministries, Inc., Southern Bible Institute, and Hispanic Bible Institute v. Texas Higher Education Coordinating Board and Commissioner Raymund Paredes
- **Court:** Texas Supreme Court
- **Decided:** August 31, 2007
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2833983

## How later opinions describe it (automated extraction)

- holding the state’s interest could be addressed by including accurate descriptive information rather than banning the speech
- 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
- rejecting a claim that the First Amendment right of free speech prohibited the state from regulating the power to confer a bachelor’s degree

## Opinion text

IN THE SUPREME COURT OF TEXAS
IN THE SUPREME COURT OF TEXAS
════════════
No. 03-0995
════════════
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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2833983. Public record. Not legal advice.