, ~-a 

3 

TRE A’ITOIZNEY GENERAL 

OF TEXAS 

AUSTIN. TIcsAs rsrll * 

January 9, 1974 

The Honorable Bevington Reed 

Commissioner 

Coordinating Board 

Texas College 81 University System 

P. 0. Box 12788, Capitol Station 

Austin, Texas 78711 

Opinion No: H-203 

Re: Wheth& church-related 

educational institutions 

participating in the Tuition 

Equalization Grrnt Program 

are prohibited from limiting 

employment to those of a 

particular religion 

Dear .br. Reed: 

You have mquested our opinion on the question: 

“[W]hether. . . church-related educational 

inetititions participating in the Tuition Equalitation Grants Programs are prohibited from : 

using employment practices which require 

adherence to a particular religion. ” 

It ir asked against a factual background identifying an institution of 

higher education, whose bylaws state, in their preamble: 

“[The College] shall stand as a witness for Jesus 

Christ expressed directly through its administration, 

faculty und students. To assure the perpetuation 

of these basic concepts of its founders it is resolved 

that all those who become associated with [the college] 

as a trustee, officer, member of the faculty or of 

the staff must believe in the divine inspiration of the 

Bible, both the Old Testament and New Testament, 

that man was directly created by God, the virgin 

birth of Jesus Christ, our Lord and Saviour as the 

p 955 

. 
. . 

. 

The Honorable Bevington Reed, page 2 (H-203) 

Son of God, that He died for the sins of all men 

and thereafter arose from the grave, that by repentance 

and the acceptance of and belief in Him, by the grace 

of God, the individual is saved from eternal damnation 

l ud receives eternal life in tbe presence of God; and it 

is further resolved that the ultimate teachings in this 

college ehall l iwaya be consistent with the above principles. ‘I 

The College, has refused to hire a person of the Jewish faith for 

a staff position solely because of the applicant’s religion. She ‘was inftirmed 

this was its established policy. 

Subchapter F of chapter 61, Texas Education Code (formerly Article 

265411, V. T. C.S. ), authorizes the Coordinating Board, Texas College and 

University System, to provide tuition equalization grants from appropriated 

funds to Texas residents enrolled in approved Texas colleges or universities 

under certain circumstances. (See Acts 1973. 63rd Leg., ‘p. 78, ch. ,51);. ’ 

Section 61.229 of me Code now provides in its subsection (b): 

“The coordinating board shall mahe such 

regulations as may be necessary to comply with 

the provisions of Article I, Section 7 . . . and 

other parts of the Texas Constitution.” 

Article 1. g7, of ~the Constitution provides: 

“No money &all be appropriated, or drawn 

from the Treasury for the benefit of any sect, or 

religious society, theological or religious seminary; 

nor shall property belonging to the State be appropriated 

for any such-purposes. ‘I 

In Attorney General Letter Advisory No. 47 (1973). addressed to the 

Chairman of the Senate Committee on Finance, we reviewed the constitutionality 

ui kricie 265,4h as it related to separation of chiwch and state and of the 

proposed Appropriatioar Act provision implementing it. We said: 

Q. 956 
The Honorable Bevlngton Reed, page 3 (H-203) 

“We are of the opinion &at Article 265421. and the 

appropriation of funds for that program, reflect a proper 

secular legislrtive purpose and are constitutional, so 

long as the Coordinating Board under its regulations, 

l dmia isb r the s program so as to avoid the advancement 

or inhfbftion of religim and so as to avoid thejse of public funds or property for the benefit of sects, religious 

societies, or tfieological or religious seminaries, in turn 

avoiding ‘excessive entanglements, ’ ” 

In arriving at that conclusion we remarked: 

“We have not been asked to pass upon, axI do not 

pass upon, the constitutionality of any particular grants 

to specific individuals attending particular schools. Indeed, 

&at fact finding process ir beyond both the scope of your 

request and the competence of thio office. The courts have 

reviewed, in passing upon these questions, the precise 

nature of the schools and programs involved, the precise 

percentage of public funds going to denominational schools, 

and a host of other factual matters which canonly properly 

be determined by an administrative body or a court. ” 

Your present request presents certain facts to be true, Fd our ansyer 

here is so Iimited. This office cannot resolve factual disputes, and our 

opinion regarding the law applicable to a given set of facts should not be 

considered a finding that ouch facts exist 

Subsequent to the issuance of Letter Advisory No. 47, pursuant to a 

request by the Secretary of the Coordinating Board. we issued Attorney 

Gensral Opinion H-66 (1973) which again reviewed the constitutionality of 

Tuition Equaliution Grants in the light of recent opiniow by the Supreme 

Court of the United States. We reaffirmed the conclusion reached by LA 

No. 47 and said: 

ffArtlcle 1, )7 of the Texas Conrtltutlon is more 

restrictive than the federal charter . . . and will not 

p. 957 
The Honorable Bevlngton Reed, page 4 (H-203) 

tolerate, in our opinion, any aid to sects or sectarian 

schools. Denominational schools are not necessarily 

sectarian in that sense, and some schools ‘with sectarian 

progrems may be able to effectively separate their 

secular programs from the sectarian remainder so that 

the use of funds for the one does not have the effect of 

subsidizing or furthering the other. The dividing lines 

are delicate but must be sharply drawn so that public 

funds are not put to sectarian uses. ” 

In considering the meaning to be given the term “sectarian scho01s~’ 

in the constitutional sense, we quoted from language in Church v. Bullock, 

100 S. W. 1025 (Tex. Civ. App., 1907, l ff’d 109 S. W. ll5): 

“‘Inviewofthe.. . constitutional provisions, 

we conclude that the words used. . . must have been 

intended by the people who ratified them to provide 

against the promulgation or teaching of the distinctive 

doctrines. creeds or tenets of any particular Christian 

or Mher religious sect in schools or institutions where 

such instruction was to be paid for out of the public fund, 

or aided by such fuuds or by public grants. , . . I I’ 

Speaking of the responsibility of the Coordinating Board to promulgate 

rules and regulations for the implementation of the Tuition Equalization “’ 

Grant program, we said in H-66: 

“Rules should be so framed that institutions 

’ having the characteristics attributed to [schools with 

which recent U. S. Supreme Court decisions were 

concerned) will not be the beneficiary of Tuition 

Equaliaation Grants. Individual recipients should 

not include those, for instance, attending seminaries 

or divinity schools, nor shouldtuition paid from public funds for a student be in anywise comingled with 

funds used to defray the cost, expense or bpkeep of 

sectarian programs or facilities. Mere church 

sponsorship of an institution would not seem by itself 

Q. 958 
The Honorable Bevington Reed, page 5 (H-203) 

to be ground for disqualification, but every possibility of a grant having more than an indirect or 

incidentof effect upon the advancement of religion 

mad be eliminated. ” 

In Committee for Public Education and Religious Liberty v. Nvquist, 

U.S. (1973). and in Levitt v. Committee for Public Education and 

Gigiouaiberty, -Il. S. -(1973), ~&he Supreme Court of the United States 

struck down a program of aid to private schools described in H-66 as one 

where: 

“[G]ualifying institutions . . . ‘could be’ ones which 

[I] imposed religious restrictions on admission, [2] 

5 required attendance at religious services, [3] required 

obedience to the doctrinem and dogmas of a particular 

faith. [4] required students to attend instruction in the 

theology or doctrine of a particular faith, [5] were an 

integral part of the religious mission of the church 

sponsoring it, [6] had as a purpose the inculcation of 

religiour ,wlues, [7] imposed religious restrictions ‘, ] 

of fkculhr apDoihtments. and [8] imposed restrictions 

on what or how the faculty may teach. ” (emphasis added) 

‘V 

It is not neceeeary, in our opinion, ,,that & these elements be present 

in order to render an institution “sectarian” under either the federal or the 

state Constitution. It is enough under the Texas constitutional prohibition 

against use of public funds that an institution requires obedience to the dogmas 

of a particular faith on the part of its staff nysmbers and refuses to have a 

pamon as a staff member became of that pason’s religiour belief. 

In our opinion, discrimination among staff members on the basis of 

religious affiliation or religious views, in policy or in practice. is very 

strong evidence that the institution is sectarian and that funds channeled 

through it would be used to promote or inhibit religion. 

In answer to your inquiry therefore; it ii our opinion that the Coordinating Board would abuse the discretion vested in it by $61.229(b), Texas 

Education Code, if it approved participation in the Tuition Equalization Grant 

Q. 959 
-. . 

. 

The Honorable Bevington Reed, page 6 (H-203) 

program by an institution which, in the factual context presented to us, 

follows a policy or practice of refusing to hire non-Christians for staff 

positions solely because of their religion. See Attorney General Letter 

Advisory No. 47 (1973), ~Attomey General opinion H-66 (1973). 

/ 

SUMMARY 

Where an institution of higher education requires 

as an establirhed fixed policy that all of its trustees, 

officers, faculty and staff members acknowledge belief 

in and adhere to particular and detailed rd,ligious doctrines and refuses to hire a person as a staff member 

because of the person’s religious beliefs, it would be 

an abuse of discretion for the Coordinating Board, Texas 

College and University System, to find the institution 

qualified to participate in the Tuition Equalization Grant 

program a8, a non-sectarian institution. 

Very truly yours, 

v Attorney General of Texas 

DAVID M. KENDALL. Chairman 

Opinion Committee 

p. 960