## , ~-a 3 TRE A’ITOIZNEY GENERAL OF TEXAS
AUSTIN. TIcsAs rsrll *

January 9, 1974
The Honorable Bevington Reed Commissioner Coordinating Board Texas College 81University 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 ofa particular religion Dear .br. Reed: You have mquested our opinion onthe question:

“[W]hether.

. . church-related educational inetititions participating inthe Tuition Equali**tation** Grants Programs are prohibited **from** : using employment practices which require adherence **to** aparticular religion. ” Itir asked against a factual background identifying an institution of higher education, whose **bylaws** state, in their preamble:

“[The College] shall stand as awitness for Jesus Christ expressed directly through its administration, faculty und students. To assure theperpetuation ofthese 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 ofthe Bible, both the Old Testament and New Testament, that man was directly created by God, thevirgin birth of Jesus Christ, our Lord andSaviour as the

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

Son of God, thatHe died for the sins of all men and thereafter arose from the grave, that by repentance and the acceptance ofand 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 

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iwaya be consistent with the above principles. ‘I The College, has refused tohire a person ofthe Jewish faith for a staff position solely because ofthe applicant’s religion. She ‘wasinftirmed 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 nowprovides inits subsection (b):

“The coordinating board shall mahe such regulations as may be necessary to comply with the provisions ofArticle I, Section 7

. . . and other parts of the Texas Constitution.” Article 1. g7, of~theConstitution 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 ofthe Senate Committee on Finance, we reviewed the constitutionality **ui** kricie 265,4has it related to separation of chiwch and state and of the proposed Appropriatioar **Act** provision implementing it. We said:

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

“We are ofthe opinion &at Article 265421. and the appropriation of funds for thatprogram, reflect a proper secular legislrtive purpose andare constitutional, so long as the Coordinating Board under its regulations, ldmiaisb rs

the program so as to avoid the advancement or inhfbftion of religim and so as to avoid thejse ofpublic funds or property for the benefit of sects, religious societies, or tfieological or religious seminaries, in turn avoiding ‘excessive entanglements, ’ ” Inarriving at that conclusion we remarked:

“We have not been asked to pass upon, axI donot pass upon, the constitutionality of anyparticular grants to specific individuals attending particular schools. Indeed, &at fact finding process ir beyond boththe scope ofyour request and the competence of thio office. The courts have reviewed, inpassing upon these questions, the precise nature ofthe schools andprograms involved, theprecise percentage of public funds going to denominational schools, and a host of other factual matters which canonly properly be determined by anadministrative 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 toa given set of facts should not be considered a finding that ouchfacts exist Subsequent to the issuance of Letter Advisory No. 47, pursuant toa request by the Secretary ofthe Coordinating Board. we issued Attorney Gensral Opinion H-66 (1973) which again reviewed theconstitutionality 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 ofthe Texas Conrtltutlon is more

restrictive thanthe federal charter

. . . andwill not

p. 957The 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 ‘withsectarian progrems may be able to effectively separate their secular programs from the sectarian remainder so that the use of funds for the one does nothave the effect of subsidizing or **furthering** the other. The **dividing** lines **are** delicate butmust be sharply drawn so thatpublic funds **are** notputto 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, 100S. W. 1025 (Tex. Civ. **App.,** 1907, lff’d 109S. W. ll5):

“‘Inviewofthe..

. constitutional provisions, we conclude that thewords used.

. . must have been intended by the people who ratified them to provide against the promulgation or teaching ofthe distinctive doctrines. creeds **or** tenets ofany particular Christian or Mher religious sect in schools or institutions where such instruction was tobe paid for out ofthe public fund, or aided by such fuuds or bypublic grants. , . . II’ Speaking ofthe responsibility ofthe Coordinating Board topromulgate rules and regulations for the implementation of the Tuition Equalization “’ Grant program, we said in H-66:

“Rules should beso 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 inanywise 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. 958The Honorable Bevington Reed, page 5 **(H-203)**

to be ground for disqualification, but **every** possibility of a grant having more thanan indirect or incidentof effect upontheadvancement of religion mad beeliminated. ” In Committee for Public Education and Religious Liberty v. Nvquist, U.S. (1973). andin Levitt v. Committee for Public Education and Gigiouaiberty, -Il. S.-(1973), ~&he Supreme Court of the United States struck downa program ofaid to private schools described in H-66 as one where:

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

[I] imposed religious restrictions onadmission, [2] 5 required attendance at religious services, [3] required obedience to the doctrinem and dogmas ofa particular faith. [4] required students toattend instruction in the theology or doctrine of **a** particular faith, [5] were an integral part ofthe 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 onwhat 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 thefederal or the state Constitution. Itis enough under the Texas constitutional prohibition against use of public funds thatan institution requires obedience to the dogmas of a particular faith onthe part ofits staff nysmbers and refuses tohave a pamon as **a** staff member became of thatpason’s religiour belief. Inour opinion, discrimination among staff members on the basis of religious affiliation or religious views, inpolicy or in practice. is very strongevidence that theinstitution is sectarian and thatfunds channeled through it would be used to promote **or** inhibit religion. Inanswer toyour 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

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

program by an institution which, in thefactual **context** presented to us, follows a policy or practice ofrefusing tohire 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 ofhigher education **requires** as an establirhed fixed policy that**all** of its **trustees,** officers, faculty and staff members acknowledge belief in andadhere to particular and detailed rd,ligious doctrines and refuses tohire a person as a staff member because ofthe 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

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