Opinion

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════════

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

Chief Justice

Jefferson , joined by Justice

Green , concurring in part and dissenting in part.

The Board

imposed a civil penalty against Tyndale for illegally

issuing thirty-four degrees. Tyndale chose not to

appeal that administrative penalty or the Board’s findings. Instead, HEB

Ministries and two unrelated entities—Southern Bible Institute and Hispanic

Bible Institute—launched a facial constitutional attack on portions of the Education Code. Specifically, HEB

Ministries and its co-plaintiffs sought a declaration that sections 61.302(1)

and 61.304 of the Education Code violated rights guaranteed by the Due Process,

Free Speech, Establishment, and Free Exercise clauses of both the

United States and Texas constitutions. Both

the trial court and the court of appeals concluded that the statute regulating

the issuance of degrees did not violate HEB Ministries’ constitutional rights.

Today, however, a majority of the Court—for differing reasons—concludes

otherwise. Because the statute does not unconstitutionally impinge on HEB

Ministries’ freedom of speech or rights guaranteed by the Establishment Clause

and the Free Exercise Clause, I respectfully dissent. I agree with the Court

that section 61.313's restriction on the use of the name “seminary” by schools

offering only religious programs of study violates the Free Exercise Clause, and

I concur in that portion of the Court’s judgment. [1]

I

Establishment

Clause

I agree with Justice

Wainwright that this case

is more appropriately analyzed under the Free Exercise Clause than the

Establishment Clause. The Establishment Clause forbids any “law respecting an

establishment of religion.” U.S.

Const . amend . I. In State v. Corpus Christi

People's Baptist Church, Inc. , 683 S.W.2d 692, 695 (Tex. 1984), we held that

an establishment clause challenge to a statute permitting state licensing and

regulation of child-care facilities, as applied to church-operated facilities,

was “misplaced.” We observed:

The

Establishment Clause cases address the issue of whether some form of

government aid , either direct or indirect, to a religious institution

violates the Establishment Clause.

Unlike the traditional Establishment Clause cases, this case involves government

regulation of a child-care institution which is part of the church

ministry. This distinction is important for two reasons. First, to accept [the

church's] argument and invalidate the licensing and regulatory scheme because of

"excessive entanglements" would create a dilemma in applying the three-pronged

Establishment Clause test; the second prong would be at odds with the third.

Requiring nonreligious childcare facilities to comply with the state licensing

and regulatory scheme while exempting religious facilities would result in

unequal state treatment of the two classes of institutions. This unequal

treatment could, arguably, be impermissible under the second-prong of the

Establishment Clause test because the primary effect would be to advance

religion.

Second, state licensing and regulation is a type of entanglement that differs

from the entanglement discussed in the traditional Establishment Clause cases.

In those cases, the State must examine and determine what programs are religious

and what programs are secular to ensure that government aid reaches only the

nonreligious ones. In our case, the state regulatory scheme prohibits inquiry

into the religious content of the homes' curriculum. The purpose of these

regulations is to assure that all child-care facilities, secular and nonsecular , meet certain minimum standards in areas such as

financial solvency, staff-child ratio, nutrition and medical care.

People’s Baptist Church , 683 S.W.2d at 695 (citations

omitted). We concluded that the licensing requirement did not offend the

Establishment Clause and noted that “[a] more appropriate and direct means of

questioning the constitutionality of this government regulation is through . . .

the Free Exercise Clause.” Id . at

695.

Such is the case here. As in People’s Baptist , requiring nonreligious

higher-education institutes to comply with the accreditation scheme while

exempting religious institutions would result in unequal treatment of the two,

an impermissible advancement of religion under the second prong of the

Lemon test. Id .; cf. Cutter v. Wilkinson , 544 U.S. 709, 722

(2005 )( noting that “an accommodation [for religious

observance] must be measured so that it does not override other significant

interests”); Jimmy Swaggart Ministries v. Bd. of

Equalization , 493 U.S. 378, 396-97 (1990) (noting the irony that exempting

religious activities from tax, as plaintiffs requested, would require the state

to engage in the arguably impermissible task of determining which expenditures

were religious and which were secular). Moreover, this case involves state

regulation, not aid. The regulatory oversight at issue here is designed to

ensure that all educational institutions—religious and secular alike—comport

with minimum educational standards for issuing degrees. Subchapter G governs a

secular matter: the creation of a system that recognizes certain types of

post-secondary educational achievement. Accreditation signals not the approval

of the school’s message, but a certification that the institution meets a

variety of educational standards, and any institution—religious or otherwise—may

apply for authorization to issue degrees. Accordingly, as in People’s

Baptist , a “more appropriate and direct means of challenging the

constitutionality” of this regulation is through the Free Exercise Clause. People’s Baptist , 683 S.W.2d at 695 .

Even if the Establishment Clause were implicated, however, the statutory scheme

here passes muster.

Under

Lemon , a government practice is constitutional if: (1) it has a secular

purpose; (2) its principal or primary effect neither advances nor inhibits

religion; and (3) it does not excessively entangle the government with

religion.

Williams v. Lara , 52 S.W.3d 171, 189 (Tex. 2001). The

plurality concedes that the accrediting statute has a secular purpose and that

its primary effect neither advances nor inhibits

religion. Instead, the plurality concludes that it is “beyond serious dispute

that the statute clearly and excessively entangles the government in matters of

religious instruction.” ___ S.W.3d at ___.

In Agostini v. Felton , the Supreme Court

noted that Lemon’s “excessive entanglement” prong was more properly analyzed as

a subset of the second prong: whether the regulation’s primary effect advanced

or inhibited religion. Agostini , 521

U.S. 203, 232-33 (1997). The

Court also noted that “[n] ot all entanglements, of

course, have the effect of advancing or inhibiting religion,” and that because

“[ i ] nteraction between

church and state is inevitable, . . .[ e] ntanglement must be ‘excessive’ before it runs afoul of the

Establishment Clause.” Id . at

233.

At least one state court has explored the contours of this inevitable

interaction between church and state in a context similar to ours. As the

plurality notes (and respectfully disagrees with), the Tennessee Supreme Court

upheld broad state regulation of a religious school that issued only religious

degrees. State v. Clarksville School of Theology ,

636 S.W.2d 706, 711 (Tenn. 1982). The court’s

reasoning is instructive:

[The Tennessee

statute] places neither a direct nor indirect burden upon the free exercise of

religion by the defendants nor threatens an entanglement between the affairs of

church and state. . . . [T]he Act does not regulate the beliefs, practices or

teachings of any institution; it merely sets forth minimum standards which must

be met in order for an institution to be authorized to issue degrees. Moreover,

the evidence shows that the granting of degrees is a purely secular activity. It

is only this activity that brings the School under the regulation of the Act.

. . .

The School can choose to not comply with the Act and yet may continue to train

ministers as it chooses; such non-compliance with the Act will simply prohibit

the School from granting degrees.

Id . at

709; see also N.J. State Bd. of Higher Educ . v. Bd.

of Dirs. of Shelton College , 448 A.2d 988, 997-998 (N.J. 1982) (rejecting

Establishment Clause challenge to a statute regulating post-secondary education,

as there was no excessive entanglement between church and state).

Similarly, the regulations here, while comprehensive, are entirely voluntary and

do not purport to interfere with the parochial mission of any school. See, e.g., Roemer v. Md. Public Works Bd. , 426

U.S. 736, 764 (1976) (plurality

op.) (determining that contacts between state and colleges for purposes

of administering aid program “are not likely to be any more entangling than the

inspections and audits incident to the normal process of the colleges'

accreditations by the State”). The plurality contends that “[t]here is no

special provision for religious instruction, and not only is the Board given no

discretion to treat such education differently than secular education, it has given no indication that it would be

willing to do so if it could.” ___ S.W.3d at ___. But

the statute, as well as the Coordinating Board’s accompanying regulations,

expressly permit religious institutions to be certified without meeting the

standard qualifications for accreditation. Section 61.308(e) provides:

If, after

a good-faith effort, an institution cannot achieve accreditation within the

period of time prescribed by the board, the institution may appeal for extension

of eligibility for certification because of having been denied accreditation

due to policies of the institution based on religious beliefs or other good

and sufficient cause as defined by the board. The board shall consider the

application of any accreditation standard that prohibited accreditation of the

institution on the basis of religious policies practiced by the institution as a

prima facie justification for extending the eligibility for certification if all

other standards of the board are satisfied .

Tex. Educ. Code § 61.308(e) (emphasis

added). [2] During the relevant time, the pertinent

regulations provided:

If the

board determines that an institution has been unable to achieve accreditation by

a recognized agency on the basis of religious policies practiced by the

institution , the board will consider the institution eligible to apply for a

certificate of authority, provided that all other standards are met at the level

of accreditation and that such religious institutions shall be eligible to

grant degrees of a religious nature only .

19 Tex. Admin. Code §

5.215(d )( 4) (2003). [3] That Tyndale

has “steadfastly refused,” 114 S.W.3d at 630, to participate in any of these

alternate processes does not make them any less available, and we should not

invalidate the statutes “merely because they may be amenable to an

unconstitutional application.” Shelton College , 448 A.2d at 490 ; see

also Roemer , 426 U.S. at 761 (noting that “[ i ]t

has not been the Court's practice, in considering facial challenges to statutes

of this kind, to strike them down in anticipation that particular applications

may result in unconstitutional [actions]”).

The plurality concludes that the State’s regulations on degree-granting violate

the Establishment Clause because allowing some religious institutions (those

that meet accreditation requirements) to grant degrees while forbidding others

to do so “clearly effectuate[s] a state preference for one model of religious

education over others, a preference that the Establishment Clause does not

permit.” ___ S.W.3d at ___. The plurality asserts that

“[ i ]t is hard to imagine a more active involvement in

religious training than by determining whether it meets the comprehensive

standards set by the Coordinating Board, and equally hard to imagine a more

direct state sponsorship of religious education than by indicating in every

institution’s name and on every academic award whether the State approves the

programs of study .” Id. at ___ (emphasis added). If this is

indeed the case, the logical implication is that the State cannot accredit

any religious colleges or universities that offer degrees in any

religious discipline, [4] as such accreditation would also appear

to run afoul of the Establishment Clause as an impermissible preference under

the plurality’s analysis. Nor, it seems to me, could the State regulate or

license religious institutions operating in other spheres, e.g .,

church-affiliated broadcasting stations. Further, the plurality’s analysis would

seem to apply to invalidate state regulation of marriage or adoption, if that

regulation was inconsistent with the tenets of a particular religion. The state

can regulate in these areas, as I believe it can regulate the issuance of

degrees, because allowing religious institutions to participate in secular

regulatory schemes simply does not violate the Establishment Clause.

The Supreme Court rejected a similar argument in Bob Jones University v.

United States , a case in which Bob Jones University contended, among other

arguments, that denying it a tax exemption violated the Establishment Clause by

preferring religions whose tenets did not require racial discrimination over

those that believed racial intermixing was forbidden. Bob Jones , 461

U.S. 574 , 604 n.30

(1983) . The Court held that:

[ i ]t is well settled that neither a state nor the Federal

Government may pass laws which prefer one religion over another, but it is

equally true that a regulation does not violate the Establishment Clause merely

because it happens to coincide or harmonize with the tenets of some or all

religions. The IRS policy at issue here is founded on a neutral, secular basis,

and does not violate the Establishment Clause. In addition, .

. . the uniform application of the rule to all religiously operated

schools avoids the necessity for a potentially entangling inquiry into whether a

racially restrictive practice is the result of a sincere religious belief.

Id.

at 604-05 (citations and internal quotations omitted). I agree with

that analysis and would hold that subchapter G, similarly, is founded on a

neutral, secular basis and does not violate the Establishment Clause.

II

Free Exercise

Clause

I also agree with Justice Wainwright

that subchapter G does not violate the Free Exercise clause. Indeed, the

plurality’s extended analysis is inappropriate because HEB Ministries does not

maintain that the conduct in which it is prohibited from engaging (the issuance

of degrees and similar documents) is religiously motivated. As the Supreme Court

explained in United States v. Lee , the “preliminary inquiry in

determining the existence of a constitutionally required exemption” from a

neutral law of general application under the Free Exercise Clause is whether

compliance with the law “violates [the challengers’] religious beliefs” and thus

“interferes with their free exercise rights.” United States v. Lee , 455

U.S. 252, 256-257 (1982). The cases

cited by the plurality affirm this rule. In Employment Division v. Smith ,

the law at issue forbade the religiously motivated use of peyote; [5] in Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah , [6] the law prohibited the ritual sacrifice

of animals demanded by the Santeria religion; even in Shelton , the New

Jersey Supreme Court case, the plaintiff college alleged that state

accreditation was inconsistent with the Bible’s command that it reject state

licensure . [7]

By contrast here, HEB Ministries is not claiming that accreditation violates any

religious principles. HEB Ministries does not contend that its religious tenets

require its graduates to hold documents the general public would likely confuse

with degrees granted by accredited colleges. HEB Ministries does not allege that

there is any religious significance to “degree,” “ bachelor’s ,” or similar terms. Moreover, the State has not

prohibited Tyndale from describing accurately its

graduates’ achievements. To give but one example, subchapter G would not

prohibit a religious institution from issuing a document certifying that “John

Doe has completed an advanced course of study in X and is qualified to minister

in Y church.”

Even assuming that a prohibition on the issuance of degrees (or similarly worded

documents) violated HEB Ministries’ religious beliefs, its Free Exercise claims

would fail because the Coordinating Board would maintain the right to ensure

educational standards. As Justice Scalia , writing for

the Court, noted in Employment Division v. Smith , the Supreme Court 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.” Smith , 494 U.S. 872, 878-79

(1990). [8] The only exceptions to this rule “have

involved not the Free Exercise Clause alone, but the Free Exercise Clause in

conjunction with other constitutional protections,” such as the protection of

freedom of speech. Id . at

881.

Thus, in order to arrive at the conclusion that subchapter G violates the Free

Exercise Clause, the plurality engages in a strained reading of the record and

the case law—characterizing the statute as restricting “the communication of

religious beliefs” such that the State must have a compelling interest and must

tailor its accreditation scheme narrowly. The plurality would implement this

heightened scrutiny when “the law affects communication.” ___ S.W.3d at

___ (emphasis added). But the Smith Court used the word “regulate”

in discussing this line of cases, [9] and a careful examination of precedent

reveals a much higher level of state involvement necessary to implicate the

freedom of speech analysis. The examples of “hybrid” freedom of speech and Free

Exercise decisions cited in Smith involved a discretionary licensing

system for religious solicitation, requiring the State to determine whether a

given cause was religious [10] and a flat tax on solicitation as

applied to dissemination of religious ideas. [11]

The regulations that were struck down under a “hybrid” analysis directly limited

religious communication. In contrast, Tyndale and

similar institutions are free under subchapter G to say and teach whatever they

wish without government involvement—they are merely barred from issuing a degree

misrepresenting the nature of the education they choose to provide. Despite

assertions to the contrary, [12] subchapter G cannot fairly be construed

as so pervasively, or even substantially, affecting communications as to trigger

strict scrutiny, and, thus, even if HEB Ministries’ conduct were religiously

motivated, subchapter G would not violate the Free Exercise Clause.

III

Free

Speech

I disagree with Justice

Wainwright ’s contention, however, that the State may only regulate

“degrees” and not associated terminology like the terms “associate,”

“bachelor’s,” “master’s,” and “doctorate.” [13] Justice Wainwright would hold that the

State may regulate a single word—degree—and that all other regulations violate

the United States Constitution. This distinction overlooks the significance of

the terminology used to connote educational achievement. Words like

“bachelor’s,” “master’s”, and “doctorate” have acquired meanings that permit

them to stand on their own, even absent the noun—“degree”—they are generally

understood to modify. When these absolute adjectives [14] are used as marks of educational

attainment, they represent the conferment of “degrees” and permit, as here, an

unaccredited institution’s graduates to overstate their credentials.

Additionally, Justice Wainwright ’s

concurrence goes beyond the protections HEB Ministries itself sought. HEB

Ministries has conceded that diplomas in secular disciplines are subject to

state regulation. It asserts only that diplomas awarded in religious disciplines

are exempt. But if the statute violated the First Amendment’s free speech

guarantee, any post-secondary institution—whether religiously affiliated or

not—would be permitted to award “the equivalent” of doctorates, master’s,

bachelor’s, and associate degrees, in any academic discipline. Imagine a “doctor

of engineering,” who received his degree from an unaccredited school, hired by

the State to inspect and repair bridges. Cf. Westbrook v. Penley , No. 04-0838, ___ S.W.3d ___, ___ (Tex. 2007)

(holding that tort liability would impinge upon matters of church governance, in

violation of the First Amendment, but noting that neither the respondent’s nor

the public’s health or safety were at issue).

Such a holding would strip the Board of authority to regulate “diploma mills,”

the very evil the Legislature sought to control through the regulatory scheme

set forth in the Education Code. See Tex. Educ. Code § 61.301. As the Legislature

noted in enacting the statute:

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; it is also the purpose of this subchapter to regulate the

use of academic terminology in naming or otherwise designating educational

institutions, the advertising, solicitation or representation by educational

institutions or their agents, and the maintenance and preservation of essential

academic records. 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 .

Justice Wainwright correctly recognizes that the speech

at issue is commercial speech. As such, it occupies one of the lowest rungs on

the First Amendment hierarchy, enjoying only a “‘limited measure of protection,

commensurate with its subordinate position in the scale of First Amendment

values,’ and is subject to ‘modes of regulation that might be impermissible in

the realm of noncommercial expression.’” Bd. of Trustees v. Fox , 492

U.S. 469, 477 (1989) (quoting

Ohralik v. Ohio State Bar Ass’n , 436 U.S. 447, 456 (1978)). Commercial

speech does “no more than propose a commercial transaction” and may be freely

regulated. Pittsburgh Press Co. v. Pittsburgh Comm’n on Human

Relations , 413 U.S. 376, 385 (1973).

In Central Hudson Gas & Electric Corp. v. Public Service Commission of

New York , 447 U.S. 557, 566 (1980), the Supreme

Court outlined its method of analyzing the lawfulness of restrictions on

commercial speech:

In

commercial speech cases, then, a four-part analysis has developed. At the

outset, we must determine whether the expression is protected by the First

Amendment. For commercial speech to come within that provision, it at least must

concern lawful activity and not be misleading. Next, we ask whether the asserted

governmental interest is substantial. If both inquiries yield positive answers,

we must determine whether the regulation directly advances the governmental

interest asserted, and whether it is not more extensive than is necessary to

serve that interest.

In this case, Justice Wainwright

cites but misapplies the Central

Hudson test by excising its first prong. Because HEB

Ministries’ speech is misleading commercial speech, it is not protected by the

First Amendment. Thompson v. W. States Med. Ctr ., 535

U.S. 357, 367 (2002). As the

Central Hudson

Court noted, “there can be no constitutional

objection to the suppression of commercial messages that do not accurately

inform the public about lawful activity. The government may ban forms of

communication more likely to deceive the public than to inform it . . . .”

Central Hudson , 447 U.S. at 563 (emphasis added). Thus,

“the government may freely regulate commercial speech that . . . is misleading,”

Florida Bar v. Went For It , 515 U.S. 618, 623-24 (1995) (citations

omitted), and the remaining Central Hudson factors apply only if the

speech is not misleading.

The record in this case leaves little doubt that HEB Ministries’ speech was

misleading. The program from Tyndale’s June 1998

Commencement Exercises lists various headings, such as “Doctor of Philosophy,”

“Doctor of Theology,” “Doctor of Ministries,” “Master of Theology,” “Master of

Arts,” “Bachelor Level Diploma of Theological Studies,” and “Associate of

Biblical Studies.” Beneath each heading are the names of students who had

completed those courses of study. The course catalog nowhere states that Tyndale does not offer degrees, and the catalog in fact

conveys the opposite impression. It features department heads and faculty

members who identify themselves as “doctors,” even though they have only

diplomas from Tyndale , an institution without a

certificate of authority issued by the Coordinating Board. Faculty members use

the familiar abbreviations for degrees, such as “Ph.D.” and “ Th.D .” even though they do not have actual degrees. In its

advertising materials, Tyndale boasted that its

“[g] raduates are . . . receiving professional pay

increases with Tyndale diplomas, a sign of recognition

and acknowledgement.” Moreover, the Board found that Tyndale awarded degrees, and HEB Ministries did not appeal

that determination.

Because misleading commercial speech may be freely regulated, HEB Ministries’

free speech claim must fail, and the Court need not reach the remaining

Central Hudson factors. But even

if the speech were not misleading, the statute easily satisfies the other

Central Hudson requirements. As the Court recognizes (and HEB Ministries

does not dispute), the State’s interest here is substantial. “Diploma mills” are

an ongoing problem, made more prevalent by the advent of the Internet. See,

e.g. , Roger J. Cramer, Managing Director, U.S. General Accounting Office,

Testimony before the U.S. Senate Committee on Governmental Affairs, Diploma

Mills: Federal Employees Have Obtained Degrees from Diploma Mills and Other

Unaccredited Schools, Some at Government Expense 7 (May 11, 2004), http://gao.gov/new.items/d04771t.pdf

(May 11, 2004) (all Internet materials as visited August 29, 2007, and available

in clerk of court’s case file)(noting that some senior-level federal employees,

including management-level employees responsible for emergency operations at the

National Nuclear Security Administration, had obtained degrees from diploma

mills and other unaccredited schools); Pa. Sues College That Gave Cat an MBA,

Dec. 7, 2004, http://www.foxnews.com/story/0,2933,140727,00.html

(describing alleged Texas diploma mill that, in exchange for $299, awarded an

MBA to a cat in Pennsylvania); Press Release, Texas Office of Attorney General,

Attorney General Abbott Gets Judgment Against Brothers Who Operated Fraudulent

Dallas Diploma Mill (Mar. 17, 2005), http://www.oag.state.tx.us/oagnews/release.php?id=841

(describing judgment obtained against Trinity Southern University, which awarded

bachelor’s master’s, and doctorate degrees based only on students’ testimony

about life experiences).

Because the State’s interest is substantial, Central Hudson ’s other factors

come into play: whether the regulation directly advances the State’s interest,

and whether the regulatory technique is “in proportion to that interest.” Cent. Hudson , 447 U.S. at 564 . As

the Supreme Court has noted, however, the Constitution does not require the

narrowest possible restriction:

What our

decisions require is a “‘fit’ between the legislature's ends and the means

chosen to accomplish those ends,” — a fit that is not necessarily perfect, but

reasonable; that represents not necessarily the single best disposition but one

whose scope is “in proportion to the interest served”; that employs not

necessarily the least restrictive means but, as we have put it in the other

contexts discussed above, a means narrowly tailored to achieve the desired

objective. Within those bounds we leave it to governmental decisionmakers to judge what manner of regulation may best

be employed.

Bd of

Trs . v. Fox , 492 U.S. 469, 480

(1989) (citations omitted).

Here, the statute represents a reasonable means of accomplishing the

Legislature’s ends. Justice

Wainwright concludes that a disclaimer would “better inform the public”

about Tyndale students’ educational accomplishments

than would compliance with the statute; thus, he concludes that “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.” ___

S.W.3d at ___. But merely because the State has not chosen the narrowest

means to achieve its objective does not mean the statute is unconstitutional. As

Fox recognized, the State need only demonstrate a reasonable fit between

the Legislature’s ends and the means chosen to accomplish those ends.

Fox , 492 U.S. at 480 . The Education Code

satisfies those requirements. The statutory requirements here do not diminish

commercial speech but merely ensure its accuracy. See Friedman v. Rogers ,

440 U.S. 1, 16 (1979) (noting that

“[r] ather than stifling commercial speech, [the

statute at issue] ensures that information regarding optometrical services will be communicated more fully and

accurately to consumers than it had been in the past”). While a disclaimer may

also fulfill that goal, the absence of such a requirement does not render the

statute unconstitutional.

Justice Wainwright warns that the statute coopts “virtually every term that could reasonably provide a

useful description of educational achievement at a postsecondary educational

institution.” ___ S.W.3d at ___. I disagree. The

statute prohibits use of only those terms that “ signif [y], purport to, or [are] generally taken to signify

satisfactory completion of the requirements of . . . a program of study leading

to an associate, bachelor’s, master’s, or doctor’s degree or its equivalent.”

Tex. Educ. Code § 61.302(1). Thus, as the

State correctly contends, Tyndale may issue diplomas

or certificates without running afoul of the statute, as long as it does not

claim that they are equivalent to associate, bachelor’s, master’s, or doctor’s

degrees.

Justice Wainwright would permit

partial state regulation of a single word—“degree”—while allowing an institution

to represent that its diplomas are indistinguishable

from valid degrees. A graduate of one of these unaccredited institutions may now

proudly display a framed diploma that says: “ABC Institute has conferred on John

Doe the designation Doctor of Medicine which is equivalent to a doctoral

degree.” Justice Wainwright ’s

proposed holding would strip the Board of its ability to regulate institutions

of higher learning. Diploma mills would stand on equal footing with accredited

institutions, and consumers would have no assurance that their professor,

engineer, counselor, or chemist graduated from an institution that satisfied the

Legislature’s minimum requirements for accreditation.

IV

Conclusion

Because the statute permissibly regulates commercial speech, and because it

presents no Establishment Clause or Free Exercise Clause violation, I

respectfully dissent from the part of the Court’s judgment that concludes

otherwise. I would reverse the court of appeals’ judgment relating to the use of

the term seminary and would render judgment for the petitioners on that issue. I

would affirm the remainder of the judgment.

______________________________

Wallace B.

Jefferson

Chief Justice

OPINION

DELIVERED: August 31,

2007

[1]

I join most of part III-B of the Court’s opinion, but I do not agree with its

proposition that “[e] ither way, the statute in its

application to schools offering only religious instruction targets religious

practices, discriminating between those that comply with state standards from

those that do not, and is not merely a neutral regulation of post-secondary

education.”

[2]

In a footnote, the plurality cites section 61.308(e) and notes the court of

appeals’ holding that this provision rendered the statutory scheme

“unobtrusive.” ___ S.W.3d at ___. The plurality brushes

this section aside because “[t]he Coordinating Board has not made that argument

in its briefs in this Court, and has not cited section 61.308(e), although it

did cite a corresponding regulation . . . and pointed out in oral argument that

because HEB Ministries has never been evaluated by the State, there has never

been an opportunity for ‘any court . . . to see if there is indeed a conflict

between any of [the State’s] requirements and [HEB Ministries’] religious

beliefs or practice.’” The plurality also notes that “[t]he Board stops short of

saying that it would have – or even could have – offered any special allowances

for religious institutions.” Regardless of the Coordinating Board’s contentions

or citations, we may no more ignore this exemption for religious institutions

than we may disregard unmentioned, but controlling, precedent.

[3]

The current regulations contain a similar provision:

The Board shall consider the application of any

accreditation standard that prohibits accreditation of an institution solely on

the basis of religious policies practiced by the institution as sufficient

justification for extending the institution's eligibility for certification to

grant degrees of a religious nature only, if the institution :

(A)

has applied for and pursued accreditation in good

faith;

(B)

meets all other standards at the level of accreditation; and

(C) satisfies all other

requirements of the Board.

19 Tex. Admin. Code § 7.6 (c) (5)

(2007).

[4]

As Respondents assert, “[ i ]f these statutes are held

to violate the Establishment Clause, a blanket exemption would be required for

all religious institutions.”

[5]

494 U.S. 872 (1990).

[6]

508 U.S. 520 (1993)

[7]

Shelton

College , 448 A.2d at 993 .

[8]

Here, as Justice Wainwright

notes, there is no doubt that the State is free to regulate postsecondary

education, and thus may regulate the issuance of degrees (and degree-like

documents) even by those who are religiously impelled to issue them.

[9]

Smith , 494 U.S. at

882 (“There being no contention that Oregon's drug law represents an attempt to

regulate . . . the communication of religious beliefs . . .”).

[10] Cantwell v. Connecticut , 310 U.S. 296,

304-307 (1940).

[11] Murdock v. Pennsylvania , 319 U.S. 105 (1943) ;

) ; Follett v. McCormick , 321 U.S. 573 (1944); see also Swaggart , 493 U.S. at 387 (discussing

Murdock and Follett and observing that “[s] ignificantly , we noted in both cases that a primary vice of

the ordinances at issue was that they operated as prior restraints of

constitutionally protected conduct.”).

[12] The plurality attempts to substantiate its

characterization by the following reasoning: “[S] ection 61.304 strongly encourages compliance with state

educational standards, which in turn affect the content and operation of

religious educational programs, and in that sense . . . affects ‘the

communication of religious beliefs’ . . .” ___ S.W.3d at ___ (citations

omitted). As discussed above, the Supreme Court requires a much more direct

regulatory relationship to trigger the higher level of scrutiny applied by the

plurality. In any case, if forbidding religious schools from falsely

representing themselves as meeting the State’s neutral, otherwise valid

educational standards has a negative impact on those schools’ enrollment (and

thus on their ability to communicate with students), this would seem merely to

be evidence of a preference among potential students for a different type of

education, or, at least, for a graduation document that can be passed off as

evidence of one. Even a church cannot boost attendance by advertising a raffle

and misrepresenting the prize.

[13] The Board assessed a $5,000 penalty for

each of the thirty-four violations. Twenty-six of the thirty-four violations

involved associate, bachelor, master, and doctoral degrees.

[14] An absolute adjective is one “having its

noun understood, not expressed, as poor in The poor are always with us .” Random House Unabridged

Dictionary 7 (2d ed. 1993). One need not say “disease” to further

describe a person afflicted with “Alzheimer’s.”