. . 

THE RTI-OECNEY GSINERAL 

OF TEXAS 

AUSTIN. TExAl3 78711 

January4, 1972 

Hon. Bevington Re,ed, Commissioner 

Coordinating Board, s-- 

Texas College and University System 

Capitol Station 

Austin, Texas 78711 

Opinion No. M-1036 

Dear Dr. Reed: 

Re: Legality of possible contractual agreement between 

the proposed Taylor County 

Junior College District and 

certain private churchrelated institutions. 

Your letter requesting the opinion of this office is quoted 

as follows: 

"The Coordinating Board, Texas College and 

University System, charged under law with approving 

elections for the purpose of establishing junior 

college districts, has received a petition from the 

steering committee of TaylorCounty requesting the 

approval of an election for the creation of a junior 

college district. All the materials related to the 

proposal are attached. 

"As an integral part of the plan placed before 

the Coordinating Board, it is proposed that the Taylor 

County Junror College Drstrict contract with Abilene 

Christian College, Hardin-Simmons University, and 

McMurry College for the provrsion of certain academic 

services which normally would be provided by the 

junior college drstrict, specifically in the area of 

academic courses 

-5053- 
. 

Hon. Bevington Reed, page 2 (M-1036) 

"It is noted that the proposed By-Laws for 

Taylor County Junior College Board of Trustees 

provides that 'it shall be forever the policy of 

the Board of Trustees to utilize the resources of 

existing private colleges for the benefit of college 

students and adult continuing education by contractual agreements with said private colleges.' 

"Question: Would such a contractual arrangement between the proposed Taylor County Junior 

College District and the private church-related 

colleges of Abilene be legal?" 

Among the materials provided with your request we have an 

excellent document entitled "A Study of Higher Education For 

Abilene, Texas," by Dr. J. R. Woolf, and a sample of the type 

of contract that the yet-to-be-created Taylor County Junior 

College DiBtriCt proposes to enter into with McMurry College, 

Hardin-Simmons University and Abilene Christian College. 

Without going into exhaustive detail, we view the overall 

proposal as containing the following elements: 

1, Creation of Taylor County Junior College 

District by election, with simultaneous. approval of 

bond issue: 

2" Construction of administration and instruction building with bond proceeds. (Vocational and 

technical instruction on the junior college level 

will be carried on in this facility.,) 

3. Contracts with the three private institutions in Abilene for conduct of primarily academic 

cour6es D Contract students are students of Taylor 

County Junior College, but entitled to sign up for 

courses on whichever of the three campuses they prefer, 

and entitled to fully participate in the student life 

-5054- 
Hon. Bevington Reed, page 3 (M-1036) 

of that campus, Such students may not be required 

to participate in any religious function carried on 

on campus. The payment provisions of the contracts 

specifically and carefully exclude payment for any 

activity connected with any religious purpose at any 

of the schools. Such payments are made on a student 

hour basis, and the elements of costs which go to make 

up that basis are carefully set out. 

The proposed plan of operation is unique in this State. 

In reviewing this plan we make no comment concerning the educational and financial feasibility of the program, as these are 

matters within the authority of the Coordinating Board, Texas 

College and University System, under Section 51.001, Education 

Code. Cur opinion is limited solely to the proposed contracts 

between Taylor County Junior College and the three private institutions, It is to be understood that the submitted contract 

has not been examined for general approval: our analysis has been 

limited to the matter of whether such a junior college district 

has general authority to enter into this particular type of contract with church-connected private institutions. 

At the outset of our analysis, we note the provisions of 

Section 51.073, Education Code: 

"The board of trustees of junior college 

districts shall be governed in the establishment, 

management and control of the junior college by the 

general law governing the establishment, management 

and control of independent school districts insofar 

as the general law is applicable." 

The general powers of a board of trustees for an independent 

school district are set out in Section 23.25, Education Code. 

The enumeration of powers set forth therein does not specifically 

include the power to contract, but the existence of such power 

in an agency or administrative body is necessarily implied in 

carrying out the functions and duties assigned. See Crosby vs. 

P. L. Marquess & Co., 226 S.W.2d 461 (Tex.Civ.App., 1950, n.r.e.): 

-5055- 
Hon. Bevington Reed, page 4 (M-1036) 

Pritchard & Abbott vs. McKenna. 350 S.W.Zd 333,334 (Tex.Sup. 

1961). In carrying out its basic function of providing educational facilities and programs for its students, we'have no 

doubt that a junior college district would have authority to 

contract for necessary services and supplies. In the instant 

case, the proposed system of contracts is designed to provide 

academic opportunities for students enrolled in the Taylor 

County Junior College. As previously mentioned, we are in no 

position to comment on the educational aspects of this proposed 

system, and we can only state that, from the legal viewpoint, a 

contract which has as its objective the provision of academic 

opportunity is within the implied authority of the junior college 

board of trustees. 

McMurry College, Hardin-Simmons University, and Abilene 

Christian College are all institutions of higher education that 

were founded by religious societies. Such societies continue to 

play a major role in the operation and financing of these schools. 

Notwithstanding su,ch a connection, ,however, the proposed contract would require each school to agree to admit any contract 

student without regard to race, creed or color, and to make no 

demands of a religious nat.ure upon any such student. 

On June 28, 1971, the United States Supreme Cou,rt issued 

two landmark decisions in the area of government-church relations, 

Lemon vs. Kurtzman (and its .:ompanion case Earlev v, DiCenso), 

403 U,S, 602, 91 S,Ct. 2105, 29 L.Ed,2d 745, and TiEton vs. 

Richardson, 403 U-S, 672, 91 SoCt, 2091, 29 L,Ed.2d 790. The 

Lemon decision dealt with challenges to Pennsylvania and Rhode 

Island statutes which provided state aid to parochial school 

teachers for teaching s,trictl.y secular courses to pupils enrolled 

in parochial schoo.ls, The -- T41,ton decision upheld the Federal 

Higher Education Facilities Act of i963, 20 U.S.C. Sec. 711 et 

seq., permitting appropriat,ions for construction for college 

and university facilities no,t used for sectarian instruction or 

as a place fo:r reli,gious ,worship,, The Court in the Lemon 

decision held that the state statutes violated the First Amendment of the U, S. Const,it,irtion, observing, inter alia, that the 

-~5056- 
Hon. Bevington Reed, page 5, (M-1036) 

statutes required the state governments to examine the schools' 

records to determine that statutory requirements were being met, 

declaring: 

"This kind of state inspection and evaluation 

of the religious content of a religious organization 

,is fraught with the sort of entanglement that the 

Constitution forbids." 

The Court distinguished the decisions in Everson v. Board of 

Education, 330 U.S. 1 (1947), upholding state payments for the 

busing of children to parochial schools, and Board of Education 

v. Allen, 392 U.S. 236 (1968). upholding the purchase of textbooks for secular courses in parochial schools. 

The Court reasoned that in those cases the payments were made 

to the students, not the schools. With regard to the payments 

to teachers, the Court said: 

"meachers have a substantially different 

ideological character than books. In terms of 

potential for involving some aspect of faith or 

morals in secular subjects, a textbook's content 

is ascertainable, but a teacher's handling of a 

subject is not." 

The following is quoted from the opinion of the Supreme 

Court by Chief Justice Burger in Tilton v, Richardson, cited 

supra, quoting from page 4: 

"There are always risks in treating criteria 

discussed by the Court from time to time as 'tests' 

in any limiting sense of that term. Constitutional 

adjudication does not lend itself to the absolutes 

of the physical sciences or mathematics. The 

standards should rather be viewed as guidelines with 

which to identify instances in which the objectives 

of the Religion Clauses have been impaired. And. as 

we.have noted in Lemon v, Kurtzman and Earley v. DiCenso, 

decided today, candor compels the acknowledgment 

-5057- 
Hon. Bevington Reed, page 6 (M-1036) 

that we can only dimly perceive the boundaries of 

permissible government activity in this sensitive 

area of constitutional adjudication, 

"Against this backqround we consider four 

questions: First, does the Act reflect a secular 

leqislative purpose? Second, is the primary effect 

of the Act to advance or inhibit religion? Third, 

does the adminis,tration of the Act foster an 

excessive qovernment entanqlement with reliqion? 

Fourth, does the implementation of the Act 

inhibit the free exercise of reliqion?" (Emphasis 

added.) 

Although our constitutional provision requiring the separation of church and state, Article I, Section 7. Texas Constitution, 

stands separate and apart from the prohibitions of the Federal 

Constitution, it is our view that the federal limitations as 

announced'by the decisions of the U. S. Supreme Court are binding upon the Texas courts and our constitutional provisions must 

be interpreted in harmony therewith. 

Fully understanding that the above and foregoing criteria 

are broad tests wi,thin which can co-exist many fact situations 

about which reasonable men can differ, we have reached the 

following conclu?ior~ with regard t.o the proposed contracts by 

the as-yet-unformed Taylor County Junior College District: 

(1) The purpose of the proposed contracts seem to be clearly 

set out in the contracts themselves, taken together with the 

comprehensive study done by Dr. J. R. Woolf. We have no problem 

in concluding that, as a mat,ter of law, the intent of the proposed contracts is to further the educational opportunities open 

to the people of Taylor Co,unty a,nd its environs. 

(2) Whether Lhe proposed co,ntracts would have ,the effect 

of advancing OCR %hi.biting rel,igion :is a somewhat more troublesome question.. Lemon concerned itself deeply with the religious 

-5058- 
Hon. Bevington Reed, page 7 (M-1036) 

impact sustained by elementary and secondary school children 

studying in parochial schools. The Court found that the 

religious purpose served by the existence of these schools could 

not help but have an impact upon the impressionable children in 

these schools, and, ultimately, that state aid to the parochial 

school teachers served to aid the advancement of religion. 

Tilton, on the other hand, dealt with college-level institutions, and rather summarily found that college students 

of this era are not particularly susceptible to religious indoctrination. The Court found that the possibilities for advancement 

of religion, given the safeguards of the statute. were minimal. 

It is our view that the safeguards of the proposed contracts 

provide adequate protection from religious indoctrination for 

the proposed junior college students herein, even though such 

students are in a category somewhat different from four-year 

college students. 

Although we do not feel that the proposed oontracts are an 

advancement of religion in the sense that they would operate to 

aid in proselyting a religion among public students, we cannot 

ignore the question of whether the influx of contract students, 

with the attendant cash flow, is an "advancement" within the 

prohibited area. Realizing that this is primarily a question 

of fact which this office does not have the authority to resolve, 

we can only point out that the contracts, on their face, provide 

for a quid pro QUO, The various colleges, in return for a cash 

payment, are to provide educational services, including campus. 

faculty and extracurricular activities. Since the schools must 

provide all these services to their regular students, it is our 

view that the --- face of the contract provides no apparent basis 

for finding that there would be a prohibited advancement of 

religion. 

(3) Does the administration of the contracts foster an 

excessive government entanglement with religion? The Supreme 

Court dealt tentatively with the "excessive entanglements" test 

-5059- 
Hon. Bevington Reed, page 8 (M-1036) 

in Wals v. Tax Commission, 397 U.S. 664 (1970). and then adopted 

it wholeheartedly in both Lemon and Tilton, supra. In Tilton,: 

the Court found that the construction grant to a college-was 

a one-time affair, and that future checks as to building use 

were de minimus, and thus that no excessive governmental contactswere incurred. 

On the other hand, in its Lemon decision, the Court found 

that the future state contacts in administering payments to 

parochial school teachers extended to detailed curriculum 

examination by State education officials and continuing 

financial review by both educational officials and auditing 

officials. The Court concluded that contacts of this type, 

on such a continuing basis, could not help but inject the 

State, with all its power, deeply into the affairs of religious 

institutions. The instant contracts provide expressly fork 

continuing contract administration by the officials of the 

junior college district, and some supervision by the Coordinating Board, Texas College and University System. It is also 

inevitable that the State Auditor's office would be required 

to examine the various books and records involved in the disbursement of State supported funds. In sum, we can discern 

no essential difference between the State contacts described 

in Lemon and those we have just outlined above. Fox "state inspection and evaluation of the religious content of a religious 

organization" is required, and the Supreme Court has declared 

this to be the sort of entanglement which is legally forbidden. 

YOU are accordingly advised that it is the opinion of the Attorney 

General that the proposed contracts submitted would require "excessive entanglement" between church and state, in violation z 

the First Amendment of the U. S. Constitution and Article I, 

Section 7, Constitution of Texas. 

our endeavor in this "sensitive area of constitutional 

adjudication" is quite candidly limited to an attempt to predict 

the attitude the Supreme Court of the United States would take 

if presented with the facts at hand, In making their decisions 

-5060-, 
Hon. Bevington Reed, page 9 (M-1036) 

in Lemon and Tilton, the Justices of the Supreme Court gave 

clear evidence of the difficulties that this kind of question 

poses in our type of society. From the language of the two 

cited opinions, we conclude that the highest court in our land 

would find that "excessive entanglements" exist in our fact 

situation. 

Our prediction of the United States Supreme Court's view 

of our facts is further supported by the following language 

of Chief Justice Burger, quoted from Lemon: 

"A broader base of entanglement of yet a 

different character is presented by the divisive 

political potential of these state programs. In 

a community where such a large number of pupils are 

served by church-related schools, it can be assumed 

that state assistance will entail considerable 

political activity. Partisans of parochial schools, 

understandably concerned with rising costs and 

sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political 

action to achieve their goals. Those who oppose state 

aid, whether for constitutional, religious, or fiscal 

reasons, will inevitably respond and employ all of the 

usual political campaign techniques to prevail. Candidates will be forced to declare and voters to choose. 

It would be unrealistic to ignore the fact that many 

people confronted with issues of this kind will find 

their votes aligned with their faith. 

"Ordinarily political debate and division, however 

vigorous or even partrsan, are normal and healthy manifestations of our democratic system of government, but 

political division along religious lines was one of 

the principal evils against which the First Amendment 

was intended to protect-" 

-5061: 
. . 1 

Hon. Bevington Reed, page 10 (M-1036) 

(4) Although the foregoing discussion makes the fourth 

test moot, we deem it advisable to state that we find nothing 

in the proposed contracts which would seem to have the effect 

of inhibiting the free exercise of religion. 

SUMMARY 

Under the rationale of Lemon v. Kurtzman, 

403 U.S. 602 (1971). and Tilton v. Richardson, 

403 U.S. 672 (1971). the most recent decisions 

of the United States Supreme Court in the area 

of church-state relations,.the system of anticipated contracts between the proposed Taylor 

County Junior College and McMurry College, 

Hardin-Simmons University and Abilene Christian 

College, whereby the three private institutions 

will accept students from the junior college, 

is violative of the First Amendment of the U. S. 

Constitution and Article I, Section 7. Texas 

Constitution, in that such contracts would 

require excessive entanglements between church 

and state. 

Prepared by Malcolm L, Quick 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

-5062- 
. . . 

Hon. Bevington Reed, page 11 (M-1036) 

Marietta Payne 

J. C. Davis 

Melvin Corley \ 

Linward Shivers 

SAM MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-5063-