OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

March 8.1999

The Honorable Frank Madla Chair, Senate Committee on Intergovernmental Relations Texas State Senate P.O. Box 12068 Austin, Texas 7871 l-2068 Opinion No. K-001 3 Re: Applicability of section 130.008 of the Education Code, which allows high school students to obtain joint credit for certain public junior college courses, to persons attending a private school (RQ-1222)
Dear Senator Madla: You have requested our opinion regarding the construction of section 130.008 of the Education Code. You ask whether that provision, which permits apublic junior college to offer courses inwhich high school students may enroll, is applicable to students attending private schools. We conclude that it is not, but that the legislature may amend the statute to make such benefits available to non-public school students consistent with the First Amendment to the United States Constitution. Section 130.008 provides, in relevant part:

(a) Under an agreement with a school district, apublic junior college may offer acourse in which astudent attending ahigh school operated by the school district may enroll and for which the student may simultaneously receive both:

(1) course credit toward the student’s high school academic requirements for graduation; and

(2) course credit as a student of thejunior college, ifthe student has been admitted to thejunior college orbecomes eligible to enroll in and is subsequently admitted to thejunior college. (b) The junior college may waive the tuition fee for a high school student enrolled in acourse for which the student may receive joint credit under this section.The Honorable Frank Madla - Page 2 (JC-0013)

TEX.EDUC.CODEANN. 5 130.008(a), (b) (Vemon Supp. 1999). Under the terms ofthis provision, apublic junior college may offer courses for simultaneous credit only to astudent “attending ahigh school operated by [a] school district,” and only “under an agreement with [the] school district.” Since aprivate school isnot “operated by aschool district,” the statute aspresently written can have no application to a student attending aprivate school. You also ask whether section 130.008 could constitutionally be amended to apply to “all Texas high school students.” The issue thus raised is whether the Establishment Clause ofthe First Amendment to the United States Constitution would prohibit the application of the amendment to students who attend sectarian schools. The Establishment Clause ofthe Constitution says merely that “Congress shall make no law respecting anestablishment ofreligion.” While the Clause isdirected atCongress, itapplies equally to state and local governmental bodies. 

### Church of

### theLukumi Babalu Aye, Inc. v. City ofHialeah, 508 U.S. 520,53 l(1993). Modem Establishment Clause law as applied topublic education derives from the United States Supreme Court’s 1971 opinion in 

### Lemon v.Kurtmann, 403U.S. 602 (1971). 

### Lemon set forth athree-part test to determine the validity of aparticular statute: 1)itmust have a secular legislative purpose; 2) its primary effect must be one that neither advances nor inhibits religion; and 3)itmust not foster an excessive governmental entanglement with religion. 

### Id. at 612- 13. In

### Aguilar v.Felton, 473 U.S. 402 (1985) and its companion case, 

### School District of 

### Grand Rapids Y.Ball, 473 U.S. 373 (1985), the Court invalidated two “shared time”programs that involved sending public school teachers into parochial schools to provide remedial and “enrichment” education to disadvantaged children. The Court concluded that, although such programs served a purely secular purpose, they failed the other two prongs oftheLemon test because they had sectarian “effects,” and because they resulted in “excessive entanglements.” Like the programs in

### Aguilur and 

### Ball, it seems clear that the kind of amendment you propose would serve a secular legislative purpose-to make public junior college courses available to all Texas high school students-and therefore comply with the first requirement of the 

### Lemon test. The programs struck down in

### Aguilar and

### Ball were conducted on the premises ofparochial schools, and itis apparent that these cases turned onthe matter oflocation. Indeed, inthe subsequent case of 

### Agostini v. Felton, 117 S. Ct. 1997 (1997) the Court noted that 

### “Aguilar implied that providing the services off-campus isentirely consistent with the Establishment Clause.” 

### Id. at2013. Thus, even under 

### Aguilav and

### Ball, apublic junior college would in alllikelihood be constitutionally permitted to offer joint-credit courses to high school students so long as such courses were not conducted on parochial school premises. In the recent case of

### Agostini, however, the Supreme Court rejected the assumptions that

“any public employee who works on areligious school’s premises ispresumed to inculcate religion in her work”; that “the presence of public employees on private school premises creates an impermissible symbolic union between church and state”; and that “any public aid that directly assists the educational function ofreligious schools is invalid.” 

### Id. at 2001. So long as the “aid is allocated on the basis ofneutral, secular criteria that neither favor nor disfavor religion, and ismadeThe Honorable Frank Madla - Page 3 (JC-0013)

available toboth religious and secular beneficiaries on anondiscriminatory basis,” itis “less likely to have the effect of advancing religion.” 

### Id.;seealsoHelms Y.Picard, 151 F.3d 347,358 (5th Cir. 1998). We assume that, under the kind of amendment you propose, thejoint-credit courses would be allocated to students on the basis of neutral, secular criteria that neither favor nor disfavor religion, and would be made available to both religious and secular beneficiaries on a nondiscriminatory basis. Under such circumstances, the amendment ofthe kind you suggest would satisfy the second prong of the 

### Lemon test: that its effect is neither to advance nor inhibit religion. The third requirement of the 

### Lemon test-that a statute not foster excessive government entanglement with religion-has also been modified by

### Agostini. The “entanglement” question is now treated as “an aspect ofthe inquiry into astatute’s effect.” 

### Agostini, 117 S.Ct. at2015. In order to find “excessive entanglement,” it is at present necessary to show that aprogram would require “pervasive monitoring by public authorities.” 

### Id. The joint-credit courses of which you inquire would presumably not be conducted on parochial school premises. Nor does your proposal appear to vest public junior colleges with any authority over the parochial schools. Thus itdoes not appear that there would arise a need for monitoring of any kind, “pervasive” or otherwise. Although we cannot resolve facts in an attorney general’s opinion, itwould appear, on the basis ofthe information you have furnished, that the amendment you propose would satisfy the third prong oflemon-that it not foster excessive governmental entanglement with religion. We conclude that the legislature may amend section 130.008 to extend joint-credit public junior college courses to private school students consistent with the Establishment Clause of the First Amendment to the United States Constitution. We emphasize that we are not here passing upon the validity of any particular legislation as any proposed bill is subject to amendment and any opinion from this office would be premature. This opinion, we hope, offers you some guidance asto what ispermissible under the Establishment Clause of the First Amendment and leaves the details of enactment to the legislature.The Honorable Frank Madla - Page 4 (JC-0013)

SUMMARY Atpresent, apublic junior college may offer courses for simultaneous high school-junior college credit only to a student “attending ahigh school operated by a school district,” and as aresult, may not offer such courses to private school students. The legislature may amend section 130.008 of the Education Code to extend joint-credit public junior college courses toprivate school students consistent with the Establishment Clause of the First Amendment to the United States Constitution.

Attorney General of Texas ANDY TAYLOR First Assistant Attorney General CLARK RENT ERVIN Deputy Attorney General - General Counsel ELIZABETH ROBINSON Chair, Opinion Committee Prepared by Rick Gilpin Assistant Attorney General