. .

THE RTI-OECNEY GSINERAL
OF TEXAS

AUSTIN. TExAl3 78711
January4, 1972

Hon. Bevington Re,ed,Commissioner Coordinating Board, s-- Texas College andUniversity System Capitol Station Austin, Texas 78711 Opinion No. M-1036

Dear Dr. Reed: Re: Legality of possible contractual agreement between theproposed Taylor County Junior College District and certain private churchrelated institutions.

Your letter requesting the opinion of this office isquoted as follows:

"The Coordinating Board, Texas College and University System, charged under lawwith approving elections for thepurpose of establishing junior college districts, has received apetition from the steering committee of TaylorCounty requesting the approval of an election for the creation of a junior college district. All thematerials related to the proposal are attached.

"Asan integral part of the plan placed before the Coordinating Board, it isproposed 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 inthe area of academic courses

-5053-.

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

"It isnoted that the proposed By-Laws for Taylor County Junior College Board of Trustees provides that 'itshallbe forever the policy of the Board of Trustees to utilize **the** resources of existing private colleges for thebenefit 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 ofAbilene be legal?"
Among thematerials provided with your request we have an excellent document entitled "AStudy of Higher Education For Abilene, Texas," by Dr. J. R.Woolf, and a sample of the type of contract that theyet-to-be-created Taylor County Junior College DiBtriCt proposes to enter intowith McMurry College, Hardin-Simmons University andAbilene 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 instructionbuilding 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 inAbilene for conduct of primarily academic cour6esD Contract students are students of Taylor County Junior College, but entitled to sign up for courses onwhichever 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 notbe required toparticipate in any religious function carried on on campus. The payment provisions of the contracts specifically and carefully exclude payment forany activity connected with any religious purpose at any of the schools. Such payments aremade on a student hour basis, and the elements of costs which go tomake up that basis are carefully set out.
The proposed plan of operation isunique inthis State. Inreviewing 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 andUniversity 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 tobe understood that **the** submitted contract has notbeen examined forgeneral approval: our analysis hasbeen limited to **the matter**  ofwhether such a junior college district has general authority to enter into this particular type of con**tract** with church-connected private institutions.

At the outset of our analysis, we note theprovisions of Section 51.073, Education Code:

"Theboard of trustees of junior college districts shallbe 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 isapplicable."
The general powers of aboard of trustees foran 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 inan agency or administrative body isnecessarily 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 itsbasic function of providing educational facilities and programs for its students, we'have no doubt that a junior college district would have authority to contract fornecessary services and supplies. Inthe instant case, theproposed system of contracts isdesigned toprovide academic opportunities for students enrolled inthe Taylor County Junior College. As previously mentioned, we are inno position to comment on the educational aspects of this proposed system, andwe can only state that, from the legal viewpoint, a contract which has as itsobjective the provision of academic opportunity iswithin the implied authority of the junior college board of trustees.
McMurry College, Hardin-Simmons University, andAbilene Christian College are all institutions ofhigher education that were foundedby religious societies. Such societies continue to play amajor role inthe operation and financing of these schools. Notwithstanding su,cha connection, ,however,the proposed contractwould require each school to agree to admit any contract student without regard to race, creed or color, and tomake no demands of a religious nat.ureupon any such student.

On June 28, 1971, theUnited States Supreme Cou,rtissued two landmark decisions inthe area of government-church relations, Lemon vs. Kurtzman (andits .:ompanioncase Earlev v, DiCenso), 403U,S, 602, 91 S,Ct. 2105, 29L.Ed,2d 745, and TiEton vs. Richardson, 403 U-S, 672, 91 SoCt, 2091, 29L,Ed.2d 790. The Lemon decision dealt with challenges to Pennsylvania and Rhode Island statutes which provided state aid toparochial school teachers for teaching s,trictl.y secular courses topupils enrolled inparochial schoo.ls, The T41,tondecision upheld the Federal -- Higher Education Facilities Act of i963, 20U.S.C. Sec. 711 et seq., permitting appropriat,ionsfor construction for college and university facilities no,tused for sectarian instruction or as aplace fo:rreli,gious,worship,,The Court in the Lemon decision held that the state statutes violated the FirstAmendment 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:
"Thiskind of state inspection and evaluation of the religious content of a religious organization ,isfraught with the sort of entanglement that the Constitution forbids."
The Court distinguished the decisions in Everson v. Board of Education, 330U.S. 1 (1947),upholding state payments for the busing of children toparochial schools, and Board of Education v.Allen, 392U.S. 236 (1968).upholding the purchase of textbooks for secular courses inparochial **schools.**
The Court reasoned that in those cases thepayments 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 thanbooks. In terms of potential for involving some aspect of faith or morals in secular subjects, atextbook's content isascertainable, but a teacher's handling of a subject isnot."
The following isquoted from the opinion of the Supreme Courtby Chief Justice Burger inTilton v, Richardson, cited supra, quoting frompage 4:

"There are always risks in treating criteria discussed by the Court from time to time as 'tests' inany limiting sense of that term. Constitutional adjudication does not lend itself to the absolutes of thephysical sciences ormathematics. The standards should rather be viewed as guidelines with which to identify instances inwhich the objectives of the Religion Clauses have been impaired. And. as we.have noted inLemon v, Kurtzman and Earley v. DiCenso, decided today, candor compels the acknowledgment

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

thatwe can only dimly perceive theboundaries of permissible government activity in this sensitive area of constitutional adjudication, "Against thisbackqround we consider four questions: First, does theAct reflect a secular leqislative purpose? Second, is the primary effect of theAct to advance or inhibit religion? Third, does the adminis,trationof theAct foster an excessive qovernment entanqlement with reliqion? Fourth, does the implementation of theAct 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 theprohibitions of the Federal Constitution, it isour view that the federal limitations as announced'by the decisions of theU. S. Supreme Court arebindingupon the Texas courts and our constitutional provisions must be interpreted inharmony therewith. Fully understanding that the above and foregoing criteria arebroad testswi,thinwhich can co-exist many fact situations about which reasonable men can differ, we have reached the following conclu?ior~ with regard t.othe proposed contracts by the as-yet-unformed Taylor County Junior College District:
(1)The purpose of the proposed contracts seem tobe clearly set out in the contracts themselves, taken together with the comprehensive study doneby Dr. J. R.Woolf. We have no problem in concluding that, as amat,terof law, the intent of the proposed contracts is to further the educational opportunities open to thepeople of Taylor Co,untya,ndits environs.
(2)Whether Lheproposed co,ntractswould have ,theeffect of advancing OCR%hi.biting rel,igion:isa 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 inparochial schools. The Court found that the religious purpose served by the existence of these schools could nothelp but have an impact upon the impressionable children in these schools, and, ultimately, that state aid to theparochial school teachers served to aid the advancement of religion. Tilton, on the other hand, dealtwith 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 ina 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 theywould operate to aid inproselyting a religion among public students, we cannot ignore the question ofwhether the influx of contract students, with the attendant cash flow, isan "advancement" within **the** prohibited area. Realizing that this isprimarily aquestion of factwhich this office does not have the authority to resolve, we can only point out that the contracts, on their face,provide foraquid pro QUO, The various colleges, in return fora cash payment, are to provide educational services, including campus. faculty and extracurricular activities. Since the schoolsmust provide all these services to their regular students, it isour view that the faceof the contract provides no apparent basis

--- for finding that therewould be aprohibited 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)

inWals v. Tax Commission, 397U.S. 664 (1970).and then adopted itwholeheartedly inboth Lemon and Tilton, supra. InTilton,: the Court found that the construction grant to a college-was a one-time affair, and that future checks as tobuilding use were deminimus, and thus that no excessive governmental contactswere incurred.

On the other hand, in itsLemon decision, the Court found that the future state contacts inadministering payments to parochial school teachers extended to detailed curriculum examination by State education officials and continuing financial reviewby both educational officials and auditing officials. The Court concluded that contacts of this type, on such a continuing basis, could nothelp but inject the State, with all itspower, 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 CoordinatingBoard, Texas College and University System. It is also inevitable that the StateAuditor's office would be required to examine the various books and records involved inthe disbursement of State supported funds. In sum,we can discern no essential difference between the State contacts described inLemon and thosewe 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 tobe the sort of entanglement which is legally forbidden. YOU are accordingly advised that it isthe opinion of theAttorney General that theproposed contracts submitted would require "excessive entanglement" between church and state, inviolation z the FirstAmendment of theU. S. Constitution andArticle I, Section 7,Constitution of Texas.

our endeavor in this "sensitive area of constitutional adjudication" isquite candidly limited to an attempt to predict the attitude the Supreme Court of the United States would take ifpresented with the facts athand, Inmaking their decisions

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

inLemon and Tilton, the Justices of the Supreme Court gave clear evidence of thedifficulties that this kind of question poses inour type of society. From the language of the two cited opinions, we conclude that the highest court inour land would find that "excessive entanglements" exist inour 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 fromLemon:

"Abroader base of entanglement ofyet a different character ispresented 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 canbe assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated toboth 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. Candidateswill be forced to declare and voters to choose. Itwould 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 andhealthy manifestations of our democratic system of government, but political division along religious lineswas one of the principal evils against which the FirstAmendment was intended toprotect-"

-5061:. . 1

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

(4)Although the foregoing discussion makes the fourth test moot, we deem itadvisable to state thatwe findnothing in the proposed contracts which would **seem** tohave the effect of inhibiting the free exercise of religion.

SUMMARY
Under the rationale of Lemon v. Kurtzman, 403U.S. 602 (1971).and Tilton v. Richardson, 403 U.S. 672 (1971).themost recent decisions of the United States Supreme Court inthe area of church-state relations,.the system of anticipated contracts between the proposed Taylor County Junior College andMcMurry College, Hardin-Simmons University andAbilene Christian College, whereby the three private institutions will accept students from the junior college, isviolative of the FirstAmendment of the U. S. Constitution andArticle I, Section 7.Texas Constitution, inthat 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

SAMMCDANIEL Staff LegalAssistant

ALFRED WALKER Executive Assistant

NOLA WHITE First Assistant

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