and cannot be enforced unless the state shows are a compelling interest and we believe that on the face of the statute there is no compelling interest because the state has chosen to give exemptions to various schools religious schools and secular schools from having to be accredited to give degrees or having to get accreditation to operate so there can be no compelling interest when the state has large loopholes in addition there are twenty eight states in the us that do not regulate religious education on the secondary level our source for that secondary or post secondary post secondary thank you the state of connecticut did a study in two thousand and seven that's referenced in our reply brief and i'm quoting from the executive summary of that report currently twenty eight states exact religious schools or bible colleges from their higher education licensing certification or accreditation process and i don't know if that's changed much from two thousand and seven but that's a fair broad statement that many states don't feel is any regulation necessary we do the other states t have rules or the similar to you know i've been going to report and i guess i could i could say there's a continuum across the board some are very restrictive illinois i would characterize as towards the more restrictive and and some that don't regulate do have modest regulations it's just it's a broad spectrum but most don't regulate and that's another problem that our clients have problems that makes an interesting discussion  to on the on the on the free exercise point of santa taber the court ruled the supreme court ruled that a lutheran school was entitle to choose its own ministers and to fire a primary school teacher who was a commissioned licensed lutheran minister and call them now that are teaching in the college are they do they have degrees from other places yes they have and it's all over it's all over the board some of them have  graduate degrees and some of them undergraduate degrees i don't i don't know all of the particulars that each school has with a requirement is the here and they have to have a graduate degree is that correct state law yeah if they're if they're going to teach undergraduate so you have to have a degree in the one level of above give me more than a page ahead of the students and that's that's what they that's what they're saying our our our issue is that the state shouldn't be able to and really has no jurisdiction to come in and say whether you're a level above or not for example if if one of our college to have billy graham come and teach evangelism and he hadn't graduated from high school they could say he's qualified because he knows his stuff that what we want to teach in terms of our faith and the state shouldn't come in and say well he needs to have a graduate degree in evangelism or biblical studies or anything or anything else it's just not within the competence of the state to say how adequate a professor is in terms of teaching reform theology mr mark part of part of your argument is very powerful i certainly agree with you that no state can tell a faith community who can teach or preach its faith right i understand that to be your strongest point and obviously there has to be a way for that faith community to decide and to communicate who's intitled to exercise that that of teaching or preaching authority and none of us should be too surprised if that process involves education right you know these these universities are part and  colleges are part of the church's right so the problem that i have with your argument is that it seems to me like you're swinging for the fences on this because you're saying that from that core religious right to decide who can preach and examine any aspect of the education including i think we have in this record for example the teaching of office skills or the teaching of construction and building skills or of biology or math and i understand you are going to be in essence because everything we want to teach is infused by our faith there is no line that can be drawn there is that is at the argument yes so that you are totally exempt from any review of math english biology office skills etc if it's and they they say you can't have an exclusively religious education it's well my impossible and i'm paraphrasing the court because you need to teach reading skills you need to  justice alito and kagan's concurring opinion goes to that issue do you have to be commissioned and their explanation is really it's a functional past well it's  right but it's it doesn't mean that there's no test right now and that's the problem that i'm having with your attempt to claim complete exemption from these laws well tabor case was an elementary school teacher who was commissioned aren't case is professors and instructors who are teaching the bible in seminaries and bible colleges which is much more within the centralized the of the of the faith issues because that's what the state regulates are the instructors adequately prepared and adequately qualified and these are instructors for bible college students and bible college seminary so so even though they may not be fully degreed or are commissioned like the lutherans do they are within the heart of the free exercise protection we we believe oh let's let's how about the subject there were mostly familiar with like law would go with the state have any ability to beyond the reach of state regulation i think prospectively yes if it turns out to be a fraudulent representation the attorney general or the students all have rights under consumer protection law to to redress if it's an inadequate education for the fact after the faster they spent money in years and so on why why can't the state prevent that by asking for licensing head of time if a school is going to call itself a school that grant so jurist doctor in shari'a law well because i don't i think the state first of all doesn't have that as a jurisdiction under the constitution and that's that it doesn't have the would have it would have a different take on it for the state to come in and say we approve of this muslim sect but this other one is inadequate violates the religious autonomy it says that the schools operate primarily as ministries of board of churches were due nominations and offer two to four year programs to prepare high school graduates for a variety of faith based careers as teachers coaches nonprofit workers ministers and more so who supposedly training them for a career or a job but what do when they come away from it  other than calling it a degree what can it when can you call the person that comes away with whatever they achieved when they were at these colleges well what can you call him you know he was i mean there are  graduate degree and then and then the employer can evaluate what kind of school is this and how how well prepared is a student do i want to hire them for my seminary or is the person chooses to go into a secular education and they have to say i have to buy the school preparation and in the employer says that's fine or the player says no i would rather you have a technical education from an engineering school let me throw out this and i'm and maybe there's a simple answer to why the term college yeah you know i thought that may come up and they should look to that but i betcha trump college was accredited and this was a post accreditation lawsuit concerning whether they were delivering what they promise but i had i don't know whether they were accredited or not or whether accreditation would have helped in that case the better for profit schools in challenging or the big one of the just closed their jazzing them because they're for profit and the alleged some sort of fraud when they get done with whatever education they get their mind backing that reason we're closing those schools up but that seems to be in the tact that yours and the question i guess that you might answer with saying where there are a whole lot of colleges where people get degrees that are basically worthless i knew a teller at a bank once they said what was your major she said interior decorating you know there are places where interior decorators are higher but it's pretty rare and she couldn't get a job and i think you could probably not list a whole lot of regular colleges that get degrees that are not really worth anything and it looks to me like what the you're focused on here i whatever you come away from from your college is other than those jobs that i just mentioned here in europe index don't they're not degrees in that worth anything getting and to label them a degree is well i don't think the people that hire them within the fundamentalist baptist circle where most of the graduates go to apply would agree with that statement when they surely wouldn't i'm just looking at it from a standpoint with the secular point of view or whatever it was come away with there are a lot of people from the secular don't come we with very good greek here but this is the problem here it's better calling it a degree is or better label for something that you could it would be com think well of the current law broadly defined stickery it says in a diploma certificate or other evidence of having successfully completed a post secondary education and so you  can't say anything and we think that under free speech if you believe you have a degree and that's going to reflect to your student body to your faculty what you're saying and your student body fact  donors board of trustees are all going to question the quality and there's plenty of control there without the state coming in and saying we don't judge that the graduate degree from a school is adequate  because it's in the study of ancient religious texts and yet the you the reason you're here is because the the label degree has economic and reputational benefits correct absolutely that you want to be entitled to your clients and their students was utils always weren't all this regular these regulations came tradition and well but in the as i understand it you basically seem to want the benefits of those kinds of labels without in the in the reputation and the quality control that supposed to go with it without any of the the costs of compliance well we don't want any credit patient your honor we don't want the benefit of state accreditation so it is first your concern then could the state distinguish and require you to distinguish between regulated and unregulated decreed degrees diplomas or certificates got the state because they require you for example to put an asterisk on the degrees that say not state approved not state accredited and you could proudly say that some type of communication i'm not sure what it what it might be that the school may adopt or the or the state be adopted may be constitutionally truthful statement so it would be permissible to distinguish between the two categories yeah you could say we're not accredited by the state here occurred by transworld commission which is another private christian accrediting organization that the constitutional matter to issue college degrees without complying with the state licensing laws and requirements of those laws that govern whether a institution of post secondary education is authorized to do so in all timidly i think that the synthesis of the problem is reflected by exhibit six to the plaintiff's complaint where they say that illinois laws are relegating them to the to a second class status the reality is just the opposite they don't want the same treatment as every other cop is entitled to they want a preferred treatment they want a better treatment they want  exceptions to a non discriminatory law and they want that exception because they have a religious objection to complying with them and the state has absolutely no interest or no desire or public policy purpose in preventing them from teaching what they want with whatever faculty they want where the state's interest comes into play however is when they also demand the right to issue college degrees which have a longstanding well established meaning in the law and in society and carry with them any economic value from the plaintiff's complaint here is clear that the reason they want to issue degrees is not because it's a fundamental aspect of their religion to issue college degrees out but rather the economic advantages that flow to their ears students who want to make themselves more marketable to their employers and hence the economic advantages that flow to the schools themselves if they're able to offer college degrees again without complying with any of the standards that have maintained created and preserve the value of that concept for over a century in this country focused on what they do do teach and learn but it separates it from what i really refer to as somebody who does interior decorating degree  the complaint doesn't ask for that relief and so i'm not sure how much the court should get into the business of giving advisory opinions about where the line should be draw i can say that under the current law anything that co notes a bachelor's degree a master's degree or a doctorate degree in traditional words or of the previous ones that are a set of similarly associated with those concepts is not something they can do now states concern and doing that is so that there is not some serious misrepresentation or possibly fraud by attaching the word degree to something that isn't worth that cash if you go there yes that's what the news i don't know the twenty eight states that are doing don't have through because it's both to prevent outright fraud illand degrees by diploma mills but also to prevent substandard degrees because if you don't set a minimum bar of competency and adequacy to the curriculum in the faculty then sub standard degrees the real the value that a degree has to graduates of licensed schools as well  and are some targeted area of expertise yes in many areas and i think the plan is position is that if they add a component of religious perspective to their education which they have an absolute right to  do it then that component gives them a complete exemption from the otherwise applicable laws that govern the degree granting institutions in the state and it it cannot be that just adding a religious perspective to a class in office accounting or building construction takes it entirely out of the domain of the state's ability to ensure that the program itself is designed to deliver what is represented i want to emphasize that the laws in this case rely entirely on secular criteria the state is not enforcing some doctrinal orthodoxy with respect to the standards it applies and so if the regulators at the board are examining a school that offers classes in einstein's theory of general relativity or quantum mechanics the evaluators don't decide whether that the principles that are taught are acceptable or they are valid they simply make what i would call a water's edge determination to see whether the faculty has  confidence to teach that course and whether the materials correspond to general relativity and quantum mechanics as opposed to interior design for example that's a minimal intrusion into the t ype of control that the planets want to have over the the design of their programs and it's an intrusion that's justified only by the fact that this these schools want  college degrees without that they're free to teach whatever they want with whomever they so what can they say let's go when we go back to the question i asked mr marker earlier that he clearly era faith community is intitled to identify who can preach and teach for it right absolutely and to communicate their choice right and absolutely they can base that choice on educational achievements right or whatever whatever criteria they want to apply to the extent that they're not telling the world that our students are graduates with a college degree except that here here's the problem though the the the statutes do define degreed so broadly that you know it looks like gold star in new testament studies would be a violation of the law right but i suppose theoretically i want to emphasize though that the plaintiffs have insisted that this isn't as applied challenge to the state laws and so they make these arguments of the good that veer off into claims about vagueness and facial over breath that are not really a part of this case they have said they want to issue bachelor's  master's and doctor's degrees and they want an exemption to do that so we could discuss hypothetically whether they should be able to say our students have taken all of these courses in these subject matters and then how beyond that they might go in terms of saying successful completion of a undergraduate program a but the whole point of this of this of this definition which dates from  massachusetts supreme court case that cited in our previous here the commonwealth versus i i forget the full title but they carefully quote a definition that's almost verbatim what the illinois statute says because as areas of education a volved the legislature didn't want to be locked into a lexicon of abbreviations or specific names creating an invitation for unsavory institutions to try and get around it i mean that look i get that and that's that's the problem here but from the other party's perspective the question is what can we say to recognize achievement they can say that the students have completed the classes that they have completed what do they call that i success and completion label after whatever you would do it with ever they came out of there with they graduate with a diploma for successful completion of whatever you want to put in you said they can't s that the lot the strictly interpreted would say that they cannot use alternative words to convey the same meaning which is that but a degree has a common sense meaning if they want to just use alternative words to convey the same thing they're again trying to get around the law in a manner that is going to do yeah and the other look yes they're trying to they are trying to get around the law in frankly i'm i have trouble with the breadth of what the plaintiffs are trying to do but there is a core of what they're arguing that is clearly correct you know that which is that they are entitled the faith community is entitled to make those kinds of decisions and communicate those kinds of decisions and that credential in process i think the catholic church has what's called the micio canonical and i apologize for my latin pronunciation but the full license to teach as a catholic and no state has any business interfering with that well if if the law does recognize as the as the exhibits to the complaint make clear that if there is a program strictly limited to seminary or theological studies that they can call that a diploma that's the private there which is that's the women got the acronyms peavy private business and vocational schools act but that exception does not apply and the other two statues does it up to be honest i'd have the academics a look back at the language to figure out where it exists it does not i believe it does not generally if you're if you're saying that you have a program that goes beyond seminary in theological studies and you want to tell people that your students have successfully completed that program then it is tantamount to saying these people have a degree in that because they've successfully completed this program of academic studies under the traditional definition of what agree a degree is and using other words to describe it as it is still runs afoul of the state's interest in ensuring that if you're going to make that representation there is an adequacy to the attic education and it's not misleading to the public or undercutting the public interest that the government has in ensuring that those certificates diplomas convey what the public has traditionally understood stood that they do convey well obviously there are a lot of religious schools that qualify under the state for their degrees and snickering yes and they teaching degree from notre dame you can go on from there those schools lead but they do get degrees they certainly are convey retargeted for their religious teaching surrounding all the courses no that's ok apparently it in those schools apparently do not have a religious objection to any government oversight of their educational materials and faculty the unique aspect of this case is that these schools not only want to issue degrees but they want to do so without complying with the regulatory standards that apply to other schools that issue degrees and i want to emphasize here that the source of the conflict in this case is not some discriminatory aspect of the law that they're challenging it's their religious objection to complying with a nondiscriminatory law and they're under traditional people direction analysis if these laws do not target religion by means of an intentional discrimination against religion or religiously motivated conduct then they're not subject to strict scrutiny you don't have to show a compelling interest and that's the smith employment of vision case where the supreme court has reaffirmed time and time again now the i don't want to belabor the two recognized exceptions in smith that the courts that the court has  referred to a hybrid claims and individualized analysis of exceptions to a general program i think our briefs adequately discussed that night i think neither of those even would be fairly argued to apply but  separate exemption from the you know general rule relating to neutral laws of general applicability and i know the court in this earlier questions has focused on that and i'd like to emphasise that  cry from what the plan of certainly ending here in hosanna taber you're talking about aspects of the poor internal autonomy of a churches or religious schools governance and when a law which is title seven anti retaliation provisions of the americans with disabilities act employee discrimination laws are applied the court emphasized that they force one of these institutions religious institutions to hire or keep somebody that they do not want to keep and that intrudes upon their inherent free exercise ability to make those decisions free from government interference but that that's not the same as a and if there were a case like that and there were an individual showing of impermissible discrimination or violation of free exercise rights in that individual case then fine there would be a free exercise challenge there but they can't be exempt from the general regulatory baseline credential where it is true that let me ask you do do you think that in hosanna tabor there is a line between you know since ministerial employees and secular employees i believe the case itself says there is so and it's difficult to draw as is the line drawing on the spectrum between you know pure internal or autonomy and governance even an outward acts but here right things are not even close to that boundary because the critical thing that they want to do here is not just choose who teaches what but to insist that they get to issue college degrees no matter who they choose to teach and so it's sort of it's sort of like a you know religious community that grows fruits and vegetables and wants to sell their produce and it's a supply and using the word organic in their sales because it generates more revenue and people pay more for the same produce if it's labeled as organic and they say but we also have a religious objection to any government inspection or oversight of our program you don't get to look to see whether we satisfy the criteria for the organic label that everybody else has to follow and at some point the government can say you can grow your fruits and vegetables and we probably can't prevent you from eating them yourselves but when you go into the world and sell them in the marketplace you don't get to use the term organic and at the same time a stiff arm the police and the public investigators to ensure that you're complying with the criteria that applied to everyone else justice holmes made a comment about you know the common law developing by different points of law not along the spectrum and it's not obvious in advance exactly where the line should be drawn between them and i think pose an a taber is inviting you know further development of the law in that area but even  believe has indicated that it does not stretch so far as to be able to leverage a religious objection to general laws of application outside of the or internal autonomy of a church or religion school to be able to whatever with degrees and they find out that that fifty or one hundred thousand dollars that they borrowed and got what they borrowed for which was a degree is not a viable opportunity for a job  schools to say well you can teach this but you're not going to be able to get it and take a student loan with government guaranteed or whatever it is for that course but but the free exercise clause doesn't now is is this huge tsunami that's coming in that's the student loan debt preventing a lot of people from buying a house doing a lot of other things because of the job that they can't get based on their degree it i know that's outside what we're talking about here but nevertheless it is what the legislatures and whatever are going to be scrutinized and they certainly are going to have to deal with that difficult issue and i would hope that they do so in a manner that does not incorporate any element of discrimination against people who went to religious institutions that there should be neutrality in these laws along those lines reliance interests and why but these are pretty extraordinary if i understand these laws under the academic degree act in the private colleges act correctly all that matters is the date of the establishment of the institution and its corporate continuity since that establishment yes but there's a there's a very sound reason for that and breakpoint i mean the first act was passed in the wake of the second world war in the g i bill at which point there was a vast political ration of diploma mills uganda not only illinois but states throughout the country if they didn't already have laws in place they put laws in place now i want to emphasize that there was not some inherent right of any corporation to create a college they could issue degrees the earliest institutions in illinois of higher education had specific legislative franchise or charters similar to the one that was granted during colonial times to dartmouth university likewise there was not an omnibus court articles of incorporation permission for any company to set up a degree granting colleges those had to be specifically issued  granted by the secretary of state under the law in place at that time so there's more than just sort of a reliance interest here in those institutions there is in fact the type of vested contractual right in those institutions drew fully justifies the type of grandfathering provision that was an acted in under those laws and there has been no suggestion in the complaint in this case that those laws have actually permitted incompetent inadequate a fraudulent schools to continue to perpetrate their deficient education on the public and it's important to emphasize that that line is itself a neutral ves of the religion there are grandfather clause cut off schools that are religious institutions the theological seminaries in illinois as well as secular institutions that predate and after that the regulatory scheme that the law imposes applies both to religious and to non religious of private colleges so i really don't think that there's anything about the grandfather clauses that dramatically changes the analysis in this case it certainly doesn't rise to the level of an equal protection challenge and i would submit that even if the court imposed strict scrutiny to this set of regulatory laws the those laws survive strict scrutiny under oath precedent and case law in many jurisdictions over many years and the existence of of a grandfather clause similar to the one that we have here has never been found sufficient to defeat a narrow tailoring point against one required a perfect fit so you know i obviously don't know the complete range of illinois statutes and regulations that might apply here but let's suppose one of these older universities or colleges  was taken over by the new generation of board members new generation of leadership and decides to start issuing ph d s in creation biology would there be any state restriction on them or ability to intervene  e in less there is essentially unless that program itself is is misrepresented i'm not aware that the current state of the law permits that but the hypothetical possibility of such a discrepancy in the future isn't enough today to strike down these laws under an as applied challenge that they have here i think the plaintiffs frequently veer off into what if type scenarios to suggest that there could be a problem at the outer boundaries of these laws under various hypothetical circumstances but that's not the case we have here we have we have a case where the essential ingredient of the plaintiff's claim on which they rest all of their constitutional challenges on the religion was is that they have a religious objection to being subject to government oversight and again i think the the the the smith case and the cases even before under a strict scrutiny analysis have said that merely being an objective to some generally applicable neutral law doesn't give you the privilege of being exempt from them otherwise a every church would be a lot to itself and the th are there are religious schools that comply with these standards and the government is not imposing and in forcing some type of doctrinal orthodoxy with respect to what they teach it's merely assuring the that the programs are adequate to teach what they profess to teach in less the court has further questions i see my time has expired i appreciate the consideration of this and urge the court to affirm the district ladies your honors i would like to address the grandfather clause first state as telling us that it's not a discriminatory regulation but it certainly is very much discriminatory to say these schools are credited they can grant degrees these other schools newer religions the islamics the schools probably there aren't any grandfathered schools they have to come and get accreditation but the others are automatically credited and and allowed to grant degrees i don't think we were they called those degrees to grandfather school is allowed we look to there are probably fifteen or twenty schools i can't remember the names off the top of my had that are granting degrees that are religious in in nature  biology and lots of others that yeah i've had religious connotations that i'd like to under address that point because our schools are giving degrees in religious topics they're not giving degrees in business administration but sure church administration is going to be a topic if you're if you're going to get a degree in ministerial studies you may need to show that you can read a balance sheet i'd don't think the problems that the state was alluding to about getting out of control are are really applicable and i would like to call the court's attention to the argument the state has made that it has but nine motives certainly the legislative process that was alluded to has many motives such as keeping out competition  state's motif is there but nine motif is we want to protect people but the supreme court in the read read case and i'm reading from the norton opinion of the seventh circuit  majority in read found that that insufficient quote a law that is content based on its face is subject to strict scrutiny regardless of the government's but nine motif is it your view that read basically erases the distinction between commercial speech and any other kind of speech i think read does that yes really i and i think they might imagine that this case i think they might have given us a hint of that more explicit well i don't want to argue for for commercial speech because that's not our our case i don't want to have to defend that i think if you but should certainly the content based aspect of the law so  state has made much of the fact mr markey that you and your clients have elected not to try the certification process the accreditation process with the state government  ordinarily when we're looking at challenges to state regulations we're looking for somewhat more concrete examples implications and so on could you address that challenge you face when you have first of all the facial aspects of the law in terms of the discrimination on the grandfather clause don't require any exhaustion of from a t the free speech laws and decisions allow standing to challenge those without having to go through an administrative process because that free speech clause says this this threatens us right now this law causes  harm to us by making our students unsure can i get a degree here are prospective students parents trying to attract faculty saying we can't issue degrees or call ourselves accredited at the same time we don't want the government involvement because we believe this is a matter of of autonomy who can preach who can teach you and can see where that would interfere with the recruiting for students lose students who may not have as full a i mean there's a spectrum of all and they have loyal donors and i'm sure there are donors who said i want to get into the school because it's not a it's not illinois accredited nice to me and i don't know what the twenty eight states do and don't do but soon there are plenty of states that allow colleges to do a year colleges do without interference that yeah twenty twenty eight  counsel the case has taken under advisement