IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 03-0995

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HEB Ministries, = Inc.,=20 Southern Bible Institute, and Hispanic Bible Institute=20 , Petitioners,

Texas Higher Education=20 Coordinating Board and Commissioner Raymund = Paredes ,=20 Respondents

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On Petition for Review from = the

Court of Appeals for the Third = District of=20 Texas

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Argued January 5,=20 2005

Chief = Justice=20 Jefferson, joined by Justice=20 Green, concurring in part and dissenting in part.

The = Board=20 imposed a civil penalty against Tyndale for = illegally=20 issuing thirty-four degrees. Tyndale chose = not to=20 appeal that administrative penalty or the Board=92s findings. Instead, = HEB=20 Ministries and two unrelated entities=97Southern Bible Institute and = Hispanic=20 Bible Institute=97launched a facial constitutional attack on portions of the Education Code. Specifically, = HEB=20 Ministries and its co-plaintiffs sought a declaration that sections = 61.302(1)=20 and 61.304 of the Education Code violated rights guaranteed by the Due = Process,=20 Free Speech, Establishment, and Free Exercise clauses of both the=20 United States and = Texas = constitutions. Both=20 the trial court and the court of appeals concluded that the statute = regulating=20 the issuance of degrees did not violate HEB Ministries=92 constitutional = rights.=20 Today, however, a majority of the Court=97for differing = reasons=97concludes=20 otherwise. Because the statute does not unconstitutionally impinge on = HEB=20 Ministries=92 freedom of speech or rights guaranteed by the = Establishment Clause=20 and the Free Exercise Clause, I respectfully dissent. I agree with the = Court=20 that section 61.313's restriction on the use of the name =93seminary=94 = by schools=20 offering only religious programs of study violates the Free Exercise = Clause, and=20 I concur in that portion of the Court=92s judgment.[1]

Establishment=20 Clause

&nbs= p;=20 I agree with Justice=20 Wainwright that = this case=20 is more appropriately analyzed under the Free Exercise Clause than the=20 Establishment Clause. The Establishment Clause forbids any =93law = respecting an=20 establishment of religion.=94 U.S.=20 Const. amend. I. In State v. Corpus = Christi=20 People's Baptist Church, Inc., 683 S.W.2d 692, 695 (Tex. 1984), we = held that=20 an establishment clause challenge to a statute permitting state = licensing and=20 regulation of child-care facilities, as applied to church-operated = facilities,=20 was =93misplaced.=94 We observed:

The=20 Establishment Clause cases address the issue of whether some form of=20 government aid, either direct or indirect, to a religious = institution=20 violates the Establishment Clause.

&nbs= p;=20 Unlike the traditional Establishment Clause cases, this case involves = government=20 regulation of a child-care institution which is part of the = church=20 ministry. This distinction is important for two reasons. First, to = accept [the=20 church's] argument and invalidate the licensing and regulatory scheme = because of=20 "excessive entanglements" would create a dilemma in applying the = three-pronged=20 Establishment Clause test; the second prong would be at odds with the = third.=20 Requiring nonreligious childcare facilities to comply with the state = licensing=20 and regulatory scheme while exempting religious facilities would result = in=20 unequal state treatment of the two classes of institutions. This unequal = treatment could, arguably, be impermissible under the second-prong of = the=20 Establishment Clause test because the primary effect would be to advance = religion.

&nbs= p;=20 Second, state licensing and regulation is a type of entanglement that = differs=20 from the entanglement discussed in the traditional Establishment Clause = cases.=20 In those cases, the State must examine and determine what programs are = religious=20 and what programs are secular to ensure that government aid reaches only = the=20 nonreligious ones. In our case, the state regulatory scheme prohibits = inquiry=20 into the religious content of the homes' curriculum. The purpose of = these=20 regulations is to assure that all child-care facilities, secular and = nonsecular, meet certain minimum standards in = areas such as=20 financial solvency, staff-child ratio, nutrition and medical care.

People=92s Baptist Church, 683 S.W.2d at 695 = (citations=20 omitted). We concluded that the licensing requirement did not = offend the=20 Establishment Clause and noted that =93[a] more appropriate and direct = means of=20 questioning the constitutionality of this government regulation is = through . . .=20 the Free Exercise Clause.=94 Id. at=20 695.

&nbs= p;=20 Such is the case here. As in People=92s Baptist, requiring = nonreligious=20 higher-education institutes to comply with the accreditation scheme = while=20 exempting religious institutions would result in unequal treatment of = the two,=20 an impermissible advancement of religion under the second prong of the=20 Lemon test. Id.; cf. Cutter v. Wilkinson, 544 U.S. = 709, 722=20 (2005)(noting that =93an accommodation [for = religious=20 observance] must be measured so that it does not override other = significant=20 interests=94); Jimmy Swaggart Ministries = v. Bd. of=20 Equalization, 493 U.S. 378, 396-97 (1990) (noting the irony that = exempting=20 religious activities from tax, as plaintiffs requested, would require = the state=20 to engage in the arguably impermissible task of determining which = expenditures=20 were religious and which were secular). Moreover, this case involves = state=20 regulation, not aid. The regulatory oversight at issue here is designed = to=20 ensure that all educational institutions=97religious and secular = alike=97comport=20 with minimum educational standards for issuing degrees. Subchapter G = governs a=20 secular matter: the creation of a system that recognizes certain types = of=20 post-secondary educational achievement. Accreditation signals not the = approval=20 of the school=92s message, but a certification that the institution = meets a=20 variety of educational standards, and any institution=97religious or = otherwise=97may=20 apply for authorization to issue degrees. Accordingly, as in = People=92s=20 Baptist, a =93more appropriate and direct means of challenging the=20 constitutionality=94 of this regulation is through the Free Exercise = Clause. People=92s Baptist, 683 S.W.2d at 695.

&nbs= p;=20 Even if the Establishment Clause were implicated, however, the statutory = scheme=20 here passes muster.

Under=20 Lemon, a government practice is constitutional if: (1) it has a = secular=20 purpose; (2) its principal or primary effect neither advances nor = inhibits=20 religion; and (3) it does not excessively entangle the government with=20 religion.

Williams v. Lara, 52 S.W.3d 171, 189 (Tex. = 2001). The=20 plurality concedes that the accrediting statute has a secular purpose = and that=20 its primary effect neither advances nor = inhibits=20 religion. Instead, the plurality concludes that it is =93beyond serious = dispute=20 that the statute clearly and excessively entangles the government in = matters of=20 religious instruction.=94 ___ S.W.3d at ___. =

&nbs= p;=20 In Agostini v. Felton, the = Supreme Court=20 noted that Lemon=92s =93excessive entanglement=94 prong was more = properly analyzed as=20 a subset of the second prong: whether the regulation=92s primary effect = advanced=20 or inhibited religion. Agostini, 521=20 U.S. 203, 232-33 = (1997). The=20 Court also noted that =93[n]ot all = entanglements, of=20 course, have the effect of advancing or inhibiting religion,=94 and that = because=20 =93[i]nteraction = between=20 church and state is inevitable, . . .[e]ntanglement must be =91excessive=92 before it runs = afoul of the=20 Establishment Clause.=94 Id. at=20 233.

&nbs= p;=20 At least one state court has explored the contours of this inevitable=20 interaction between church and state in a context similar to ours. As = the=20 plurality notes (and respectfully disagrees with), the Tennessee Supreme = Court=20 upheld broad state regulation of a religious school that issued only = religious=20 degrees. State v. Clarksville School of Theology,=20 636 S.W.2d 706, 711 (Tenn. 1982). The = court=92s=20 reasoning is instructive:

&nbs= p;=20 [The Tennessee=20 statute] places neither a direct nor indirect burden upon the free = exercise of=20 religion by the defendants nor threatens an entanglement between the = affairs of=20 church and state. . . . [T]he Act does not regulate the beliefs, = practices or=20 teachings of any institution; it merely sets forth minimum standards = which must=20 be met in order for an institution to be authorized to issue degrees. = Moreover,=20 the evidence shows that the granting of degrees is a purely secular = activity. It=20 is only this activity that brings the School under the regulation of the = Act.=20

. . .

&nbs= p;=20 The School can choose to not comply with the Act and yet may continue to = train=20 ministers as it chooses; such non-compliance with the Act will simply = prohibit=20 the School from granting degrees.

Id. at=20 709; see also N.J. State Bd. of Higher Educ. v. Bd.=20 of Dirs. of Shelton College, 448 A.2d 988, 997-998 (N.J. 1982) = (rejecting=20 Establishment Clause challenge to a statute regulating post-secondary = education,=20 as there was no excessive entanglement between church and state).

&nbs= p;=20 Similarly, the regulations here, while comprehensive, are entirely = voluntary and=20 do not purport to interfere with the parochial mission of any school. = See, e.g., Roemer v. Md. Public Works Bd., 426=20 U.S. 736, 764 (1976) = (plurality=20 op.) (determining that contacts between state and colleges for = purposes=20 of administering aid program =93are not likely to be any more entangling = than the=20 inspections and audits incident to the normal process of the colleges'=20 accreditations by the State=94). The plurality contends that =93[t]here = is no=20 special provision for religious instruction, and not only is the Board = given no=20 discretion to treat such education differently than secular education, it has given no indication that it would = be=20 willing to do so if it could.=94 ___ S.W.3d at = ___. But=20 the statute, as well as the Coordinating Board=92s accompanying = regulations,=20 expressly permit religious institutions to be certified without meeting = the=20 standard qualifications for accreditation. Section 61.308(e) = provides:

If, after=20 a good-faith effort, an institution cannot achieve accreditation within = the=20 period of time prescribed by the board, the institution may appeal for = extension=20 of eligibility for certification because of having been denied = accreditation=20 due to policies of the institution based on religious beliefs or = other good=20 and sufficient cause as defined by the board. The board shall = consider the=20 application of any accreditation standard that prohibited accreditation = of the=20 institution on the basis of religious policies practiced by the = institution as a=20 prima facie justification for extending the eligibility for = certification if all=20 other standards of the board are satisfied.

Tex. Educ. Code =A7 61.308(e) = (emphasis=20 added).[2] During the relevant time, the = pertinent=20 regulations provided:

If the=20 board determines that an institution has been unable to achieve = accreditation by=20 a recognized agency on the basis of religious policies practiced by = the=20 institution, the board will consider the institution eligible to = apply for a=20 certificate of authority, provided that all other standards are met at = the level=20 of accreditation and that such religious institutions shall be = eligible to=20 grant degrees of a religious nature only.

19 Tex. Admin. = Code =A7=20 5.215(d)(4) (2003).[3] That Tyndale=20 has =93steadfastly refused,=94 114 S.W.3d at 630, to participate in any = of these=20 alternate processes does not make them any less available, and we should = not=20 invalidate the statutes =93merely because they may be amenable to an=20 unconstitutional application.=94 Shelton College, 448 A.2d at = 490; see=20 also Roemer, 426 U.S. at 761 (noting that =93[i]t=20 has not been the Court's practice, in considering facial challenges to = statutes=20 of this kind, to strike them down in anticipation that particular = applications=20 may result in unconstitutional [actions]=94).

&nbs= p;=20 The plurality concludes that the State=92s regulations on = degree-granting violate=20 the Establishment Clause because allowing some religious institutions = (those=20 that meet accreditation requirements) to grant degrees while forbidding = others=20 to do so =93clearly effectuate[s] a state preference for one model of = religious=20 education over others, a preference that the Establishment Clause does = not=20 permit.=94 ___ S.W.3d at ___. The plurality = asserts that=20 =93[i]t is hard to imagine a more active = involvement in=20 religious training than by determining whether it meets the = comprehensive=20 standards set by the Coordinating Board, and equally hard to imagine = a more=20 direct state sponsorship of religious education than by indicating in = every=20 institution=92s name and on every academic award whether the State = approves the=20 programs of study.=94 Id. at ___ (emphasis added). If = this is=20 indeed the case, the logical implication is that the State cannot = accredit=20 any religious colleges or universities that offer degrees in = any=20 religious discipline,[4] as such accreditation would = also appear=20 to run afoul of the Establishment Clause as an impermissible preference = under=20 the plurality=92s analysis. Nor, it seems to me, could the State = regulate or=20 license religious institutions operating in other spheres, e.g.,=20 church-affiliated broadcasting stations. Further, the plurality=92s = analysis would=20 seem to apply to invalidate state regulation of marriage or adoption, if = that=20 regulation was inconsistent with the tenets of a particular religion. = The state=20 can regulate in these areas, as I believe it can regulate the issuance = of=20 degrees, because allowing religious institutions to participate in = secular=20 regulatory schemes simply does not violate the Establishment Clause. =

&nbs= p;=20 The Supreme Court rejected a similar argument in Bob Jones University = v.=20 United States, a case in which Bob Jones University contended, among = other=20 arguments, that denying it a tax exemption violated the Establishment = Clause by=20 preferring religions whose tenets did not require racial discrimination = over=20 those that believed racial intermixing was forbidden. Bob Jones, = 461=20 U.S. 574, 604 n.30=20 (1983). The Court held that:

[i]t is well settled that neither a state nor the = Federal=20 Government may pass laws which prefer one religion over another, but it = is=20 equally true that a regulation does not violate the Establishment Clause = merely=20 because it happens to coincide or harmonize with the tenets of some or = all=20 religions. The IRS policy at issue here is founded on a neutral, secular = basis,=20 and does not violate the Establishment Clause. In addition, .=20 . . the uniform application of the rule to all religiously = operated=20 schools avoids the necessity for a potentially entangling inquiry into = whether a=20 racially restrictive practice is the result of a sincere religious = belief.

Id.=20 at 604-05 (citations and internal quotations omitted). I = agree with=20 that analysis and would hold that subchapter G, similarly, is founded on = a=20 neutral, secular basis and does not violate the Establishment Clause. =

Free = Exercise=20 Clause

&nbs= p;=20 I also agree with Justice = Wainwright=20 that subchapter G does not violate the Free Exercise clause. = Indeed, the=20 plurality=92s extended analysis is inappropriate because HEB Ministries = does not=20 maintain that the conduct in which it is prohibited from engaging (the = issuance=20 of degrees and similar documents) is religiously motivated. As the = Supreme Court=20 explained in United States v. Lee, the =93preliminary inquiry in=20 determining the existence of a constitutionally required exemption=94 = from a=20 neutral law of general application under the Free Exercise Clause is = whether=20 compliance with the law =93violates [the challengers=92] religious = beliefs=94 and thus=20 =93interferes with their free exercise rights.=94 United States v. Lee, 455 = U.S. 252, 256-257 (1982). = The cases=20 cited by the plurality affirm this rule. In Employment Division v. = Smith,=20 the law at issue forbade the religiously motivated use of peyote;[5] in Church of the Lukumi Babalu Aye, = Inc. v. City of=20 Hialeah,[6] the law prohibited the ritual = sacrifice=20 of animals demanded by the Santeria religion; even in Shelton, = the New=20 Jersey Supreme Court case, the plaintiff college alleged that state=20 accreditation was inconsistent with the Bible=92s command that it reject = state=20 licensure.[7]

&nbs= p;=20 By contrast here, HEB Ministries is not claiming that accreditation = violates any=20 religious principles. HEB Ministries does not contend that its religious = tenets=20 require its graduates to hold documents the general public would likely = confuse=20 with degrees granted by accredited colleges. HEB Ministries does not = allege that=20 there is any religious significance to =93degree,=94 =93bachelor=92s,=94 or similar terms. Moreover, the = State has not=20 prohibited Tyndale from describing = accurately its=20 graduates=92 achievements. To give but one example, subchapter G would = not=20 prohibit a religious institution from issuing a document certifying that = =93John=20 Doe has completed an advanced course of study in X and is qualified to = minister=20 in Y church.=94

&nbs= p;=20 Even assuming that a prohibition on the issuance of degrees (or = similarly worded=20 documents) violated HEB Ministries=92 religious beliefs, its Free = Exercise claims=20 would fail because the Coordinating Board would maintain the right to = ensure=20 educational standards. As Justice Scalia, = writing for=20 the Court, noted in Employment Division v. Smith, the Supreme = Court has=20 =93never held that an individual's religious beliefs excuse him from = compliance=20 with an otherwise valid law prohibiting conduct that the State is free = to=20 regulate.=94 Smith, 494 U.S. = 872, 878-79=20 (1990).[8] The only exceptions to this = rule =93have=20 involved not the Free Exercise Clause alone, but the Free Exercise = Clause in=20 conjunction with other constitutional protections,=94 such as the = protection of=20 freedom of speech. Id. at=20 881.

&nbs= p;=20 Thus, in order to arrive at the conclusion that subchapter G violates = the Free=20 Exercise Clause, the plurality engages in a strained reading of the = record and=20 the case law=97characterizing the statute as restricting =93the = communication of=20 religious beliefs=94 such that the State must have a compelling interest = and must=20 tailor its accreditation scheme narrowly. The plurality would implement = this=20 heightened scrutiny when =93the law affects communication.=94 ___ = S.W.3d at=20 ___ (emphasis added). But the Smith Court used the word = =93regulate=94=20 in discussing this line of cases,[9] and a careful examination of = precedent=20 reveals a much higher level of state involvement necessary to implicate = the=20 freedom of speech analysis. The examples of =93hybrid=94 freedom of = speech and Free=20 Exercise decisions cited in Smith involved a discretionary = licensing=20 system for religious solicitation, requiring the State to determine = whether a=20 given cause was religious [10] and a flat tax on solicitation = as=20 applied to dissemination of religious ideas.[11] =20

&nbs= p;=20 The regulations that were struck down under a =93hybrid=94 analysis = directly limited=20 religious communication. In contrast, Tyndale and=20 similar institutions are free under subchapter G to say and teach = whatever they=20 wish without government involvement=97they are merely barred from = issuing a degree=20 misrepresenting the nature of the education they choose to provide. = Despite=20 assertions to the contrary,[12] subchapter G cannot fairly be = construed=20 as so pervasively, or even substantially, affecting communications as to = trigger=20 strict scrutiny, and, thus, even if HEB Ministries=92 conduct were = religiously=20 motivated, subchapter G would not violate the Free Exercise Clause.

III

Free = Speech

&nbs= p;=20 I disagree with Justice=20 Wainwright=92s contention, however, that the State may only = regulate=20 =93degrees=94 and not associated terminology like the terms = =93associate,=94=20 =93bachelor=92s,=94 =93master=92s,=94 and =93doctorate.=94 [13] Justice Wainwright would hold = that the=20 State may regulate a single word=97degree=97and that all other = regulations violate=20 the United States Constitution. This distinction overlooks the = significance of=20 the terminology used to connote educational achievement. Words like=20 =93bachelor=92s,=94 =93master=92s=94, and =93doctorate=94 have acquired = meanings that permit=20 them to stand on their own, even absent the noun=97=93degree=94=97they = are generally=20 understood to modify. When these absolute adjectives[14] are used as marks of = educational=20 attainment, they represent the conferment of =93degrees=94 and permit, = as here, an=20 unaccredited institution=92s graduates to overstate their credentials. =

&nbs= p;=20 Additionally, Justice = Wainwright=92s=20 concurrence goes beyond the protections HEB Ministries itself sought. = HEB=20 Ministries has conceded that diplomas in secular disciplines are subject = to=20 state regulation. It asserts only that diplomas awarded in religious = disciplines=20 are exempt. But if the statute violated the First Amendment=92s free = speech=20 guarantee, any post-secondary institution=97whether religiously = affiliated or=20 not=97would be permitted to award =93the equivalent=94 of doctorates, = master=92s,=20 bachelor=92s, and associate degrees, in any academic discipline. Imagine = a =93doctor=20 of engineering,=94 who received his degree from an unaccredited school, = hired by=20 the State to inspect and repair bridges. Cf. Westbrook v. Penley, No. 04-0838, ___ S.W.3d ___, ___ (Tex. = 2007)=20 (holding that tort liability would impinge upon matters of church = governance, in=20 violation of the First Amendment, but noting that neither the = respondent=92s nor=20 the public=92s health or safety were at issue).

&nbs= p;=20 Such a holding would strip the Board of authority to regulate =93diploma = mills,=94=20 the very evil the Legislature sought to control through the regulatory = scheme=20 set forth in the Education Code. See Tex. Educ. Code = =A7 61.301. As the = Legislature=20 noted in enacting the statute:

It is the=20 policy and purpose of the State of Texas to prevent deception of the = public=20 resulting from the conferring and use of fraudulent or substandard = college and=20 university degrees; it is also the purpose of this subchapter to = regulate the=20 use of academic terminology in naming or otherwise designating = educational=20 institutions, the advertising, solicitation or representation by = educational=20 institutions or their agents, and the maintenance and preservation of = essential=20 academic records. Because degrees and equivalent indicators of = educational=20 attainment are used by employers in judging the training of prospective=20 employees, by public and private professional groups in determining=20 qualifications for admission to and continuance of practice, and by the = general=20 public in assessing the competence of persons engaged in a wide range of = activities necessary to the general welfare, regulation by law of the = evidences=20 of college and university educational attainment is in the public = interest. To=20 the same end the protection of legitimate institutions and of those = holding=20 degrees from them is also in the public interest.

Id. =

&nbs= p;=20 Justice Wainwright correctly recognizes that = the speech=20 at issue is commercial speech. As such, it occupies one of the lowest = rungs on=20 the First Amendment hierarchy, enjoying only a =93=91limited measure of = protection,=20 commensurate with its subordinate position in the scale of First = Amendment=20 values,=92 and is subject to =91modes of regulation that might be = impermissible in=20 the realm of noncommercial expression.=92=94 Bd. of Trustees v. = Fox, 492=20 U.S. 469, 477 = (1989) (quoting=20 Ohralik v. Ohio State Bar Ass=92n, 436 U.S. 447, 456 (1978)). = Commercial=20 speech does =93no more than propose a commercial transaction=94 and may = be freely=20 regulated. Pittsburgh Press Co. v. Pittsburgh Comm=92n = on Human=20 Relations, 413 U.S. 376, 385 = (1973).

&nbs= p;=20 In Central Hudson Gas & Electric Corp. v. Public Service = Commission of=20 New York, 447 U.S. 557, 566 (1980), the = Supreme=20 Court outlined its method of analyzing the lawfulness of restrictions on = commercial speech:

In=20 commercial speech cases, then, a four-part analysis has developed. At = the=20 outset, we must determine whether the expression is protected by the = First=20 Amendment. For commercial speech to come within that provision, it at = least must=20 concern lawful activity and not be misleading. Next, we ask whether the = asserted=20 governmental interest is substantial. If both inquiries yield positive = answers,=20 we must determine whether the regulation directly advances the = governmental=20 interest asserted, and whether it is not more extensive than is = necessary to=20 serve that interest.

&nbs= p;=20 In this case, Justice = Wainwright=20 cites but misapplies the Central=20 Hudson test by excising its first prong. Because = HEB=20 Ministries=92 speech is misleading commercial speech, it is not = protected by the=20 First Amendment. Thompson v. W. States Med. = Ctr., 535=20 U.S. 357, 367 = (2002). As the=20 Central Hudson=20 Court noted, =93there can be no = constitutional=20 objection to the suppression of commercial messages that do not = accurately=20 inform the public about lawful activity. The government may ban forms = of=20 communication more likely to deceive the public than to inform it . = . . .=94=20 Central Hudson, 447 U.S. at 563 (emphasis = added). Thus,=20 =93the government may freely regulate commercial speech that . . . is = misleading,=94=20 Florida Bar v. Went For It, 515 U.S. 618, 623-24 (1995) = (citations=20 omitted), and the remaining Central Hudson factors apply only if = the=20 speech is not misleading.

&nbs= p;=20 The record in this case leaves little doubt that HEB Ministries=92 = speech was=20 misleading. The program from Tyndale=92s = June 1998=20 Commencement Exercises lists various headings, such as =93Doctor of = Philosophy,=94=20 =93Doctor of Theology,=94 =93Doctor of Ministries,=94 =93Master of = Theology,=94 =93Master of=20 Arts,=94 =93Bachelor Level Diploma of Theological Studies,=94 and = =93Associate of=20 Biblical Studies.=94 Beneath each heading are the names of students who = had=20 completed those courses of study. The course catalog nowhere states that = Tyndale does not offer degrees, and the catalog in = fact=20 conveys the opposite impression. It features department heads and = faculty=20 members who identify themselves as =93doctors,=94 even though they have = only=20 diplomas from Tyndale, an institution = without a=20 certificate of authority issued by the Coordinating Board. Faculty = members use=20 the familiar abbreviations for degrees, such as =93Ph.D.=94 and =93Th.D.=94 even though they do not have actual = degrees. In its=20 advertising materials, Tyndale boasted that = its=20 =93[g]raduates are . . . receiving = professional pay=20 increases with Tyndale diplomas, a sign of = recognition=20 and acknowledgement.=94 Moreover, the Board found that Tyndale awarded degrees, and HEB Ministries did = not appeal=20 that determination.

&nbs= p;=20 Because misleading commercial speech may be freely regulated, HEB = Ministries=92=20 free speech claim must fail, and the Court need not reach the remaining=20 Central Hudson factors. = But even=20 if the speech were not misleading, the statute easily satisfies the = other=20 Central Hudson requirements. As the Court recognizes (and HEB = Ministries=20 does not dispute), the State=92s interest here is substantial. = =93Diploma mills=94 are=20 an ongoing problem, made more prevalent by the advent of the Internet. = See,=20 e.g., Roger J. Cramer, Managing Director, U.S. General Accounting = Office,=20 Testimony before the U.S. Senate Committee on Governmental Affairs, = Diploma=20 Mills: Federal Employees Have Obtained Degrees from Diploma Mills and = Other=20 Unaccredited Schools, Some at Government Expense 7 (May 11, 2004), http://gao.gov/new.items/d0= 4771t.pdf=20 (May 11, 2004) (all Internet materials as visited August 29, 2007, and = available=20 in clerk of court=92s case file)(noting that some senior-level federal = employees,=20 including management-level employees responsible for emergency = operations at the=20 National Nuclear Security Administration, had obtained degrees from = diploma=20 mills and other unaccredited schools); Pa. Sues College That Gave Cat an = MBA,=20 Dec. 7, 2004, http://www.fo= xnews.com/story/0,2933,140727,00.html=20 (describing alleged Texas diploma mill that, in exchange for $299, = awarded an=20 MBA to a cat in Pennsylvania); Press Release, Texas Office of Attorney = General,=20 Attorney General Abbott Gets Judgment Against Brothers Who Operated = Fraudulent=20 Dallas Diploma Mill (Mar. 17, 2005), http://w= ww.oag.state.tx.us/oagnews/release.php?id=3D841=20 (describing judgment obtained against Trinity Southern University, which = awarded=20 bachelor=92s master=92s, and doctorate degrees based only on students=92 = testimony=20 about life experiences).

&nbs= p;=20 Because the State=92s interest is substantial, Central Hudson=92s = other factors=20 come into play: whether the regulation directly advances the State=92s = interest,=20 and whether the regulatory technique is =93in proportion to that = interest.=94 Cent. Hudson, 447 U.S. = at 564. As=20 the Supreme Court has noted, however, the Constitution does not require = the=20 narrowest possible restriction:

What our=20 decisions require is a =93=91fit=92 between the legislature's ends and = the means=20 chosen to accomplish those ends,=94 =97 a fit that is not necessarily = perfect, but=20 reasonable; that represents not necessarily the single best disposition = but one=20 whose scope is =93in proportion to the interest served=94; that employs = not=20 necessarily the least restrictive means but, as we have put it in the = other=20 contexts discussed above, a means narrowly tailored to achieve the = desired=20 objective. Within those bounds we leave it to governmental decisionmakers to judge what manner of regulation = may best=20 be employed.

Bd of=20 Trs. v. Fox, 492 U.S. = 469, 480=20 (1989) (citations omitted).

&nbs= p;=20 Here, the statute represents a reasonable means of accomplishing the=20 Legislature=92s ends. Justice=20 Wainwright concludes that a disclaimer would =93better inform the = public=94=20 about Tyndale students=92 educational = accomplishments=20 than would compliance with the statute; thus, he concludes that =93the = State has=20 not carried its burden of showing that its regulation of this commercial = speech=20 directly advances its interest because the regulation is more extensive = than=20 necessary to serve the Legislature=92s legitimate purposes.=94 ___=20 S.W.3d at ___. But merely because the State has not chosen the = narrowest=20 means to achieve its objective does not mean the statute is = unconstitutional. As=20 Fox recognized, the State need only demonstrate a reasonable fit = between=20 the Legislature=92s ends and the means chosen to accomplish those ends.=20 Fox, 492 U.S. at 480. The Education = Code=20 satisfies those requirements. The statutory requirements here do not = diminish=20 commercial speech but merely ensure its accuracy. See Friedman v. = Rogers,=20 440 U.S. 1, 16 (1979) (noting = that=20 =93[r]ather than stifling commercial speech, = [the=20 statute at issue] ensures that information regarding optometrical services will be communicated more = fully and=20 accurately to consumers than it had been in the past=94). While a = disclaimer may=20 also fulfill that goal, the absence of such a requirement does not = render the=20 statute unconstitutional.

&nbs= p;=20 Justice Wainwright warns that the statute coopts =93virtually every term that could = reasonably provide a=20 useful description of educational achievement at a postsecondary = educational=20 institution.=94 ___ S.W.3d at ___. I = disagree. The=20 statute prohibits use of only those terms that =93signif[y], purport to, or [are] generally taken to = signify=20 satisfactory completion of the requirements of . . . a program of study = leading=20 to an associate, bachelor=92s, master=92s, or doctor=92s degree or its = equivalent.=94=20 Tex. Educ. = Code =A7 61.302(1). Thus, = as the=20 State correctly contends, Tyndale may issue = diplomas=20 or certificates without running afoul of the statute, as long as it does = not=20 claim that they are equivalent to associate, bachelor=92s, master=92s, = or doctor=92s=20 degrees.

&nbs= p;=20 Justice Wainwright would = permit=20 partial state regulation of a single word=97=93degree=94=97while = allowing an institution=20 to represent that its diplomas are = indistinguishable=20 from valid degrees. A graduate of one of these unaccredited institutions = may now=20 proudly display a framed diploma that says: =93ABC Institute has = conferred on John=20 Doe the designation Doctor of Medicine which is equivalent to a = doctoral=20 degree.=94 Justice = Wainwright=92s=20 proposed holding would strip the Board of its ability to regulate = institutions=20 of higher learning. Diploma mills would stand on equal footing with = accredited=20 institutions, and consumers would have no assurance that their = professor,=20 engineer, counselor, or chemist graduated from an institution that = satisfied the=20 Legislature=92s minimum requirements for accreditation.

Conclusion

&nbs= p;=20 Because the statute permissibly regulates commercial speech, and because = it=20 presents no Establishment Clause or Free Exercise Clause violation, I=20 respectfully dissent from the part of the Court=92s judgment that = concludes=20 otherwise. I would reverse the court of appeals=92 judgment relating to = the use of=20 the term seminary and would render judgment for the petitioners on that = issue. I=20 would affirm the remainder of the judgment.

______________________________

Wallace B.=20 Jefferson

Chief Justice=20

OPINION=20 DELIVERED: August 31,=20 2007 &nb= sp; &nbs= p; = ; = =20

^[1]=20 I join most of part III-B of the Court=92s opinion, but I do not agree = with its=20 proposition that =93[e]ither way, the = statute in its=20 application to schools offering only religious instruction targets = religious=20 practices, discriminating between those that comply with state standards = from=20 those that do not, and is not merely a neutral regulation of = post-secondary=20 education.=94

^[2]=20 In a footnote, the plurality cites section 61.308(e) and notes the court = of=20 appeals=92 holding that this provision rendered the statutory scheme=20 =93unobtrusive.=94 ___ S.W.3d at ___. The = plurality brushes=20 this section aside because =93[t]he Coordinating Board has not made that = argument=20 in its briefs in this Court, and has not cited section 61.308(e), = although it=20 did cite a corresponding regulation . . . and pointed out in oral = argument that=20 because HEB Ministries has never been evaluated by the State, there has = never=20 been an opportunity for =91any court . . . to see if there is indeed a = conflict=20 between any of [the State=92s] requirements and [HEB Ministries=92] = religious=20 beliefs or practice.=92=94 The plurality also notes that =93[t]he Board = stops short of=20 saying that it would have =96 or even could have =96 offered any special = allowances=20 for religious institutions.=94 Regardless of the Coordinating Board=92s = contentions=20 or citations, we may no more ignore this exemption for religious = institutions=20 than we may disregard unmentioned, but controlling, precedent.

^[3]=20 The current regulations contain a similar provision:

The Board shall consider the application of = any=20 accreditation standard that prohibits accreditation of an institution = solely on=20 the basis of religious policies practiced by the institution as = sufficient=20 justification for extending the institution's eligibility for = certification to=20 grant degrees of a religious nature only, if the institution:

(A) = =20 has applied for and pursued accreditation in good=20 faith;

(B) &n= bsp;=20 meets all other standards at the level of accreditation; and

19 Tex. Admin. Code =A7 7.6 (c) (5)=20 (2007).

^[4]=20 As Respondents assert, =93[i]f these = statutes are held=20 to violate the Establishment Clause, a blanket exemption would be = required for=20 all religious institutions.=94

^[5]=20 494 U.S. 872(1990).

^[6]=20 508 U.S. 520 (1993)

^[7]=20 Shelton=20 College, = 448 A.2d at 993.

^[8]=20 Here, as Justice Wainwright=20 notes, there is no doubt that the State is free to regulate = postsecondary=20 education, and thus may regulate the issuance of degrees (and = degree-like=20 documents) even by those who are religiously impelled to issue them. =

^[9]=20 Smith, 494 U.S. at=20 882(=93There being no contention that Oregon's drug law represents an = attempt to=20 regulate . . . the communication of religious beliefs . . .=94).

^[10] Cantwell v. Connecticut, 310 U.S. = 296,=20 304-307 (1940).

^[11] Murdock v. Pennsylvania, 319 U.S. 105 (1943);=20 ); Follett v. McCormick, 321 U.S. 573 (1944); see also = Swaggart, 493 U.S. at 387 (discussing=20 Murdock and Follett and observing that =93[s]ignificantly, we noted in both cases that a = primary vice of=20 the ordinances at issue was that they operated as prior restraints of=20 constitutionally protected conduct.=94).

^[12] The plurality attempts to = substantiate its=20 characterization by the following reasoning: =93[S]ection 61.304 strongly encourages compliance with = state=20 educational standards, which in turn affect the content and operation of = religious educational programs, and in that sense . . . affects =91the=20 communication of religious beliefs=92 . . .=94 ___ S.W.3d at ___ = (citations=20 omitted). As discussed above, the Supreme Court requires a much more = direct=20 regulatory relationship to trigger the higher level of scrutiny applied = by the=20 plurality. In any case, if forbidding religious schools from falsely=20 representing themselves as meeting the State=92s neutral, otherwise = valid=20 educational standards has a negative impact on those schools=92 = enrollment (and=20 thus on their ability to communicate with students), this would seem = merely to=20 be evidence of a preference among potential students for a different = type of=20 education, or, at least, for a graduation document that can be passed = off as=20 evidence of one. Even a church cannot boost attendance by advertising a = raffle=20 and misrepresenting the prize.

^[13] The Board assessed a $5,000 = penalty for=20 each of the thirty-four violations. Twenty-six of the thirty-four = violations=20 involved associate, bachelor, master, and doctoral degrees.

^[14] An absolute adjective is one = =93having its=20 noun understood, not expressed, as poor in The poor are always with us.=94 Random House = Unabridged=20 Dictionary 7 (2d ed. 1993). One need not say =93disease=94 = to further=20 describe a person afflicted with =93Alzheimer=92s.=94=20