January 30, 1975
The Honorable Jack K. Williams President Texas A&M University College Station, Texas 77843 Opinion No. H- 511 Re: Whether use ofphysical facilities of state university by church affiliated student organization would violate the U.S. and Texas Constitutions
. Dear Dr. Williams:

You have asked our opinion on the legality ofthe university’s recognition ofvarious ch~urchaffiliated student organizations and of permitting them the same use ofuniversity facilities permitted other recognized student organizations, including the rent-free use ofmeeting rooms and auditoriums. We understand that religiously oriented organizations would constitute only a small percentage ofthe total number of student clubs recognized by the university.

The First Amendment to the United States Constitution which applies to the states by virtue ofthe Fourteenth Amendment provides in part that: Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof
. . . . Inexamining governmental enactments against the backdrop of the constitutional language, the Supreme Court has .developed afour .,, point test which must be considered. The ‘Guestions which. must be considered are:

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First, does the Act reflect a secular legislative ’ purpose? Second, is the primary effect ofthe Act toadvance or inhibit religion? Third, does the administration oftheAct foster an excessive government entanglement with religion? Fourth, does the implementation oftheAct inhibit the free exercise of religion? Tilton v. Richardson, 403 U.S. 672, 678 (1971). See also Hunt v. McNair. 413 U.S. 734 (1973); Committee for Public Education v. Nyquist. 413 U.S. 756 (1973); Attorney General Opinions H-203 (1974). H-66 (1973). Letter Advisory No. 47 (1973). We are not prepared to conclude that theme uniitersity’s policy of recqgnizing student clubs, including some religiously-oriented clubs, does nothave a secular purpose of encouraging students tomeet to discuss ideas and pursue goals ofcommon interest and promote the secular purpose of establishing apluralistic community. See Walt V. Tax Commission, 397 U.S. 664 (1970) (Brennan, concurring);zyishian v. Board of Regents ofNew York, 385 U.S. 589 (1967). Neither are we convinced that the university’s policy of recognizing student clubs, including **some** religiously-oriented clubs, would have the primary effect ofadvancing or hindering religion. The primary effect appears to be to encourage the interchange ofideas byall types ofgroups ofwhich religious organizations constitute only a small portion. See Allen -- v. Morton, 495 F.2d 65 (D.C. Cir. 1973). Nor can we say that the entanglement test is violated. We understand that recognition ofan organization operates as an essentially non-discretionary act and that use offacilities by these groups is handled ona “resermtion, first come, first served” basis. Greater entanglement problems might be pre~sented ifthe school denied use ofits facilities to religious groups and was required toascertain agroup’s purposes and monitor its activities. Walz v. Tax Commission, 397 U.S. 664 (1970); E,‘Healy v.. James. 408 U.S. 169 (1972). There is aninternal tension intheFirst Amendment between the establishment clause and the free exercise clause., Tilton v. Richardson, 403 U.S. 672 (1971). The Supreme Court has held denials oflicenses for

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**use** ofpublic parks for religious services to be invalid as a denial of equal protectioh in the exercise offreedom of religion. Fowler v. Rhode Island, 345 U.S. 67 (1953); Kunz v. New York,, 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S. 268 (1951). Although it did not discuss the relation between the establishment and free exercise clauses, the Supreme Court did not question the use ofpublic parks and streets for religious purposes and did rely on the denial ofthe right offree ‘exercise of religion. If, as we understand, use ofuniversity facilities by student religious orgati.zations is on the same basis as those facilities are used by other student. clubs and there is no university policy or action to encourage attendance, we believe any problems concerning denial ofthe free exercise of religion can be avoided. See Stacy v. Williams, 306 F. Supp. 963 (N.D. Miss. 1969) (3-judge court).

Of course even protected activities are subject to reasonable regulations respecting **the**time, place and manner oftheir exercise. Cantwell v. Connecticut, 310U.S. 296 (1940). The university can and should, however, condition the use ofits facilities by student religious groups in the same manner as it does with non-religious groups. Healy v. James, 408 U.S. 169 (1972).

Inaddition to satisfying the requirements of the First Amendment to the United States Constitution, any progra,m of recognizing student religious groups is subject tothe limitations ofarticle 1, section 7ofthe Texas Constitution that:

No money shall be appropriated, or drawn from the Treasury for the benefit ofany sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes. Ithas been held in a long and well researched opinion that a school building may be rented to a religious group during non-school hours. Attorney General Opinion O-5354 (1943). And see Pratt v. Arizona Board ofRegents, 520 P. 2d 514 (Ariz. 1974). Webelieve that, when.use ofa small portion ofabuilding by a religious group is permitted as aapart of

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The Honorable Jack K. Williams p. 4 (H-511)

alarger student-club program which the university has determined is an important part ofits overall educational function, such use could not be correctly termed the “appropriation” ofproperty belonging to the State for religious purposes within the intent and contemplation ofarticle 1, section 7ofthe Texas Constitution.

Even though there is some expenditure ofstate funds for utilities and maintenance occasioned by the student group’s use ofa meeting room, we believe the amount is normally so small as tobe insignificant. As the Florida Supreme Court said in relation toa similar situation under a similar constitutional provision: We think, however, that it istotally unnecessary to become involved in any prolonged discussion ofthe applicability ofthe separation of Church and State principle. Inregard tothe Florida Constitutional prohibition against contributing public funds inaid of any religious denomination, we find nothing in this record to support aconclusion that any public funds have been contributed. Taking note ofappellant’s insistence that the **use** ofthe building is something ofvalue and that the wear and tear is anindirect contribution from the public treasury, itappears to us that we might here properly apply the maxim “De minimis non curat lex. ” Nothing of substantial consequence is shown and we see no reason to burden this opinion with a discussion oftrivia. Southside Estates Baptist Church v. Board of Trustees, 115So. 2d 697, 699 (Fla. 1959). ”

**Your** question is narrow, and we have limited our answe; solely to the question raised. We donot pass onany possible action or fact situation which might go beyond the scope ofthe question presented here. SUMMARY\ / Where a university provides meeting rooms .I ,I

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The Honorable Jack K. Williams, page 5 (H-511)

for student groups, including some religiously-oriented groups, as part ofabroad-based student club program, itis not precluded from so permitting theuse ofmeeting rooms and auditoriums ona non-discretionary, first come-first served basis where there is nouniversity policy or action to encourage attendance. Very truly yours,

Attorney General ofTexas APPROVED:

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH. Chairman Opinion Committee

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