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 a public junior college to offer 

courses in which 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, a public junior 

college may offer a course in which a student attending a high 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 the junior college, if the 

student has been admitted to the junior college or becomes eligible to 

enroll in and is subsequently admitted to the junior college. 

(b) The junior college may waive the tuition fee for a high 

school student enrolled in a course for which the student may receive 

joint credit under this section. 
The Honorable Frank Madla - Page 2 (JC-0013) 

TEX. EDUC. CODE ANN. 5 130.008(a), (b) (V emon Supp. 1999). Under the terms of this provision, 

a public junior college may offer courses for simultaneous credit only to a student “attending a high 

school operated by [a] school district,” and only “under an agreement with [the] school district.” 

Since a private school is not “operated by a school district,” the statute as presently written can have 

no application to a student attending a private 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 of the First 

Amendment to the United States Constitution would prohibit the application of the amendment to 

students who attend sectarian schools. 

The Establishment Clause of the Constitution says merely that “Congress shall make no law 

respecting an establishment ofreligion.” While the Clause is directed at Congress, it applies equally 

to state and local governmental bodies. Church of the Lukumi Babalu Aye, Inc. v. City ofHialeah, 

508 U.S. 520,53 l(1993). Modem Establishment Clause law as applied to public education derives 

from the United States Supreme Court’s 1971 opinion in Lemon v. Kurtmann, 403 U.S. 602 (1971). 

Lemon set forth a three-part test to determine the validity of a particular statute: 1) it must have a 

secular legislative purpose; 2) its primary effect must be one that neither advances nor inhibits 

religion; and 3) it must 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 of parochial 

schools, and it is apparent that these cases turned on the matter of location. Indeed, in the subsequent 

case of Agostini v. Felton, 117 S. Ct. 1997 (1997) the Court noted that “Aguilar implied that 

providing the services off-campus is entirely consistent with the Establishment Clause.” Id. at 2013. 

Thus, even under Aguilav and Ball, a public junior college would in all likelihood 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 a religious school’s premises is presumed 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 of religious schools is invalid.” Id. at 2001. So long as the “aid is 

allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made 
The Honorable Frank Madla - Page 3 (JC-0013) 

available to both religious and secular beneficiaries on a nondiscriminatory basis,” it is “less likely 

to have the effect of advancing religion.” Id.; see also Helms Y. Picard, 151 F.3d 347,358 (5th Cir. 

1998). We assume that, under the kind of amendment you propose, the joint-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 of the 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 of the inquiry into a statute’s effect.” Agostini, 117 S.Ct. at 2015. In order 

to find “excessive entanglement,” it is at present necessary to show that a program 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 it does 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, it would 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 as to what is permissible 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 

At present, a public junior college may offer courses for simultaneous 

high school-junior college credit only to a student “attending a high school 

operated by a school district,” and as a result, 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 to private 

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