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, = Petitioners,

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

&n= bsp; =20 Justice Wainwright, = joined by=20 Justice Johnson, = concurring in=20 part and dissenting in part, and concurring in the judgment.

&nbs= p;=20 Today the Court reaffirms the sacred principle that Americans have a = fundamental=20 right to their religious beliefs. The United States Constitution = prohibits the=20 government from interfering with this liberty, as the state has no = authority to=20 regulate religious beliefs. I concur in the Court=92s result on all = issues=20 decided, some for different reasons, except one. I agree that the = government=20 cannot dictate whether private religious institutions may call = themselves=20 =93seminaries=94 as the term admits primarily a religious connotation. = Because the=20 training of clerics and teaching of religious doctrines at religious=20 institutions is inherent to religious beliefs, the State also cannot = license=20 clerics or regulate their training. I also agree that the government may = not=20 preclude religious institutions from employing virtually any useful = terminology=20 to describe the postsecondary educational achievements of their = students, but I=20 would hold, contrary to the plurality, that the State, within = constitutional=20 limits, may require private educational institutions to comply with = minimum=20 educational criteria before they may confer postsecondary degrees on = their=20 students. A holding that the Legislature is barred by the U.S. = Constitution from=20 setting minimum standards for the issuance of college and graduate = degrees by=20 religious institutions, establishes a constitutional right for one type = of=20 institution to issue postsecondary degrees regardless of compliance with = public=20 standards. This holding precludes the Legislature from considering = permissible=20 alternatives, such as allowing religious institutions to issue college = degrees=20 with appropriate disclosures on their graduation documents indicating = that their=20 degrees are not from state-certified programs (if, for example, they do = not=20 include required minimum study in mathematics, science, humanites, written communication, basic computer=20 instruction, or other subjects). This would permanently tie the hands of = the=20 Legislature, precluding it from considering constitutionally permissible = alternatives so that it may concurrently protect religious freedom while = ensuring that all private postsecondary degrees from Texas = institutions=20 represent meaningful educational achievement. The Religion Clauses of = the First=20 Amendment of the Constitution do not compel this result. The = plurality=92s logic=20 goes astray in melding the act of issuing a postsecondary graduation = document=20 with the absolute right to religious beliefs, and fails to recognize = that the=20 Legislature=92s ensuring that all postsecondary degrees are meaningful=20 designations is not an improper targeting of Tyndale=92s=20 religious beliefs. The government may not under the Constitution dictate = which=20 religious institutions call themselves seminaries, whom they may hire to = teach=20 and what curriculum they may teach, but calling a graduation document a=20 bachelor=92s degree, instead of a bachelor=92s certificate, is not an = issue of=20 religious beliefs, notwithstanding Tyndale=92s attempt=20 to conflate the two. I also concur with the plurality, for different = reasons,=20 that religious institutions have the right to accurately label their = graduation=20 documents, as the Free Speech Clause of the Constitution precludes the = State=20 from broadly barring private postsecondary institutions from using = virtually all=20 terminology that reasonably describes the educational attainment of = their=20 students.

Background

&nbs= p;=20 Petitioner HEB Ministries, Inc.[1] is a = non-profit=20 Texas=20 corporation and orthodox Christian church that operates, as one of its=20 ministries, the Tyndale Theological Seminary = and Bible=20 Institute.[2] Tyndale=20 provides undergraduate and graduate level education to students in=20 ecclesiastical subjects such as theology, apologetics, and Christian = studies,=20 and also provides general-education courses such as English grammar,=20 composition, and ancient world history. The Texas Higher Education = Coordinating=20 Board fined Tyndale for using terms = protected by the=20 Education Code in its name and for issuing some graduation documents to = its 1998=20 graduates which, while not using the protected term =93degree,=94 are = advertised by=20 Tyndale as equivalent to a degree or as = satisfying=20 part of a state-certified postsecondary degree program.

&nbs= p;=20 The Board fined Tyndale $3,000 for using the = term=20 =93seminary=94 in violation of section 61.313(a)(1) of the=20 Education Code.[3] For =93doctrinal reasons=94 and = fear of=20 jeopardizing its =93ecclesiastical rights,=94 Tyndale did=20 not seek a temporary certificate of authority from the Board, nor = longer-term=20 accreditation from a state-approved accrediting agency.[4] Tyndale now=20 argues that the twenty-one state-mandated standards required for = accreditation=20 or a certificate of authority are = impermissibly=20 intrusive. See 19 Tex. = Admin. Code =A7 7.7. For = example, Tyndale claims that the regulation regarding = faculty=20 qualifications would prohibit Reverend Billy Graham, Mother Teresa, the=20 Apostles, and a Jewish carpenter born in a manger from teaching at the=20 institution.

The=20 Board also fined Tyndale $170,000 for = purportedly=20 issuing =93degrees=94=97as statutorily defined=97in violation of section = 61.304 of the=20 Education Code. Section 61.304 prohibits private postsecondary = institutions from=20 granting =93degrees=94 without first obtaining a certificate of = authority from the=20 Board or becoming accredited by a state-approved accrediting agency. = Tex. Educ. Code =A7 61.304; = see also=20 id. =A7 61.303(a) (exempting accredited institutions). =93Degree=94 = is broadly=20 defined as

any title=20 or designation, mark, abbreviation, appellation, or series of letters or = words,=20 including associate, bachelor=92s, master=92s, doctor=92s, and their = equivalents,=20 which signifies, purports to, or is generally taken to signify = satisfactory=20 completion of the requirements of all or part of a program of study = leading to=20 an associate, bachelor=92s, master=92s, or doctor=92s degree or its = equivalent.

Id. =A7=20 61.302(1). None of the documents awarded by Tyndale at its 1998 graduation were actually = titled=20 =93degree,=94 but the Board alleges that Tyndale used=20 terminology on the documents and in brochure descriptions that bring the = documents within the broad definition of =93degree=94 in section = 61.302(1). Though=20 not evident from the statutory language, the Board now concedes that = issuing=20 =93diplomas=94 or =93certificates,=94 without the protected words or = brochure=20 descriptions, is not a violation of section = 61.304.

&nbs= p;=20 In response to the Board=92s fines, Tyndale = filed this=20 lawsuit seeking a declaratory judgment that applicable sections of the = Texas=20 Education Code are unconstitutional under the Free Speech, Free = Exercise, and=20 Establishment Clauses of the First Amendment of the United States = Constitution,=20 and under the Freedom of Worship Clause in Article I, section 6 of the = Texas=20 Constitution. Both Tyndale and the Board = filed motions=20 for summary judgment. In its ruling on these motions, the trial court = upheld the=20 fines assessed against Tyndale for granting = =93degrees,=94=20 under section 61.304, but vacated the fine for Tyndale=92s use of the term =93seminary,=94 under = section=20 61.313(a)(1), holding that the State=92s = regulation of=20 that term violated the First Amendment of the United States Constitution = and=20 Article I, sections 6, 8, and 20 of the Texas Constitution.

&nbs= p;=20 The court of appeals reversed the trial court=92s judgment allowing = unregulated=20 use of the term =93seminary=94 and rejected Tyndale=92s Free=20 Exercise, Establishment Clause, and Free Speech challenges. 114 S.W.3d 617, 633-36. The court of appeals = affirmed the=20 trial court=92s judgment with respect to the granting of degrees, = holding that=20 section 61.304 does not violate the Establishment Clause, the Free = Exercise=20 Clause, or Tyndale=92s right to free speech. = Id. at=20 628-29, 631-32.

Constitutional=20 Prohibition Against State

Regulation of=20 Religious Convictions

&nbs= p;=20 The Religion Clauses provide that =93Congress shall make no law = respecting an=20 establishment of religion, or prohibiting the free exercise = thereof.=94[5] U.S. Const. amend. I. They apply to the states through the = doctrine of=20 incorporation in the Fourteenth Amendment. Cantwell v.=20 Connecticut, 310 = U.S. = 296, 303=20 (1940). The Free Exercise Clause erects an unqualified = prohibition=20 against government interference with beliefs. State v.=20 Corpus Christi People=92s Baptist Church, Inc., 683 S.W.2d 692, 695=20 (Tex.=20 1984). The Clause also protects certain conduct motivated by = religious=20 beliefs. United=20 States v. = Lee, 455=20 U.S. 252 (1982). = Under the=20 Establishment Clause, the state may not prefer religion to irreligion or = one=20 religion to others, nor may the government exhibit hostility towards = religion.=20 Everson v. Bd. of Educ. of Ewing, 330 = U.S. 1,=20 15-16 (1947); see also Bd. of Educ. of = Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 703 (1994); Lee v. = Weisman,=20 505 U.S. 577, 609-16 (1992) (Souter, J., = concurring).=20 These constitutional principles guide the evaluation of the state = regulations at=20 issue.

A. The Free Exercise Clause

&nbs= p;=20 The United States Constitution protects the free exercise of religion = from undue=20 state infringement. U.S. = Const.=20 amend I, cl. 2, amend XIV, =A7 1; = Cantwell v.=20 Connecticut, 310 U.S. 296, 303 (1940); = see also=20 Tex. Const. art. I, =A7=A7=20 6, 29.[6] The Free Exercise Clause of the = First=20 Amendment protects religious freedom by ensuring that the freedom to = hold=20 religious beliefs and opinions is absolute. Braunfeld v. = Brown,=20 366 U.S. 599, 603 = (1961). This was=20 reiterated in Employment Division v. Smith, where the Supreme = Court held=20 that =93the First Amendment obviously excludes all =91governmental = regulation of=20 religious beliefs as such.=92=94 494 U.S. 872, 877, 879 (1990) (quoting = Sherbert v. Verner,=20 374 U.S. at 402 (1963)). The = first issue=20 is whether the statutes at issue regulate religious beliefs.[7]

1. State Regulation of the Term =93Seminary=94

&nbs= p;=20 Section 61.313(a) of the Texas Education Code requires that all private=20 postsecondary educational institutions in Texas must submit to state = regulation in order=20 to call themselves seminaries. Specifically, section 61.313(a)=20 provides:

Unless the=20 institution has been issued a certificate of authority under this = subchapter, a=20 person may not: (1) use the term =93college,=94 =93university,=94 = =93seminary,=94 =93school of=20 medicine,=94 =93medical school,=94 =93health science center,=94 = =93school of law,=94 =93law=20 school,=94 or =93law center=94 in the official name or title of a = nonexempt private=20 postsecondary educational institution; or (2) describe an institution = using a=20 term listed in Subdivision (1) or a term having a similar meaning.

Tex. Educ. = Code =A7 61.313(a). To = comply with=20 this section of the Education Code, Tyndale = must=20 submit to twenty-one state-established standards. See id.; 19 = Tex. Admin. Code =A7 = 7.7.=20 Tyndale complains that such state regulation = violates=20 its rights under the Free Exercise Clause.

&nbs= p;=20 The State contends that its regulation of the term =93seminary=94 is = neutral and=20 generally applicable, and thus permissible under Smith. I = disagree. The=20 State does not have the authority to determine whether a private = postsecondary=20 educational institution that professes a sincere faith may call itself a = =93seminary.=94 See Smith, 494 U.S. at 888; Hernandez v. = Commissioner,=20 490 U.S. 680, 699 (1989). = Requiring=20 religious organizations to submit to state regulation in order to call=20 themselves seminaries is at odds with the Free Exercise Clause of the = First=20 Amendment of the United States Constitution.

&nbs= p;=20 The Board argued in its briefing that the term =93seminary=94 is not an = =93exclusively=20 religious=94 one, and the court of appeals apparently agreed. 114 S.W.3d at 633. The Board contended, citing = Church v.=20 Bullock, 109 S.W. 115, 117 (Tex. 1908), that a seminary is a = =93place of=20 education=94 and only departs from this secular meaning when the = adjectives=20 =93theological=94 or =93religious=94 are placed in front of it to take = on the meaning of=20 =93a place specifically for the preparation of men for the ministry, or = at least,=20 for the teaching of religious doctrines.=94 In postsubmission briefing, the Board acknowledged = that=20 =93seminary=94 is a religious term but asserts that the term also = conveys a secular=20 meaning.

&nbs= p;=20 Statutory interpretation begins with the plain and common meaning of the = statute=92s words. McIntyre v. Ramirez, 109 = S.W.3d 741,=20 745 (Tex.=20 2003). As enacted in 1975, section 61.313(a) only included the = terms=20 =93college=94 and =93university.=94 Act of May 28, 1975, 64th Leg., = R.S., ch. 587, =A7 1, 1975 Tex. Gen. Laws 1867, 1870. The = Legislature=20 added the term =93seminary=94 in 1997, along with the terms =93school of = medicine,=94=20 =93medical school,=94 =93health science center,=94 =93school of law,=94 = =93law school,=94 and=20 =93law center.=94 Act of May 9, 1997, 75th Leg., R.S., ch.=20 232, =A7 1, 1997 Tex. Gen. Laws 1147, 1149. If = =93seminary=94 has a=20 predominantly secular meaning, as the Board contends, there is no reason = for the=20 Legislature to add it to the list of protected terms, as the addition = would only=20 repeat the statute=92s reference to other secular educational = institutions. We=20 presume that each word in the statute has meaning and that the = Legislature added=20 seminary to the statute to include within the scope of the statute = entities that=20 were not covered by other terms. See Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963). The inclusion of = =93seminary=94 added=20 religious institutions to the scope of the statute.

&nbs= p;=20 In addition, this Court has pondered the meaning of this word before. = This Court=20 reasoned in Bullock that

=93[a] seminary is a place of education . . . = specifically a=20 school for the education of men for the priesthood or ministry.=94 A = seminary=20 being a =93place of education,=94 the adjectives =93theological or = religious=94=20 necessarily give to it the meaning of a place specifically for the = preparation=20 of men for the ministry, or at least, for the teaching of religious = doctrines.=20 The words are commonly so used.

109 S.W. at 117 (quoting 25 Am. & Eng. Ency. Law, 286). In that case, this Court = did not=20 hold that it was only when combined with the words =93religious=94 or = =93theological=94=20 that the word =93seminary=94 took on the meaning proposed by HEB = Ministries in this=20 case. See id. =93Seminary=94 has a primarily religious = connotation, and when=20 combined with the word =93theological,=94 as in Tyndale=20 Theological Seminary, it has an exclusively religious meaning.

&nbs= p;=20 The court of appeals relied, in part, on the definition of = =93seminary=94 given in=20 Black=92s Law Dictionary: =93[a]n educational institution, such as a = college,=20 academy, or other school.=94 Black=92s Law=20 Dictionary 1392 (8th ed. 2004). Webster=92s dictionary, however, = defines=20 the same term as =93an institution for the training of candidates for = the=20 priesthood, ministry, or rabbinate.=94 Webster=92s Third New International=20 Dictionary 2064 (1961). Even the Board acknowledges that = Tyndale=92s avowed purpose is to train ministers = to work in=20 churches. In the context and usage of the statute, the word = =93seminary=94 included=20 in the State=92s statutory scheme refers to institutions that provide = religious=20 education, instruction, and training.

&nbs= p;=20 The United States Court of Appeals for the Fifth Circuit has held that, = in some=20 circumstances, a seminary qualifies as a =93church=94 for purposes of = the=20 ministerial exception. EEOC v. Sw. Baptist Theological Seminary, 651 F.2d = 277, 283 (5th=20 Cir. 1981). In Southwestern Baptist, the court observed = that the=20 defendant seminary was an =93integral part of a church, essential to the = paramount=20 function of training ministers who will continue the faith.=94 = Id. = The court also=20 held that the seminary=92s faculty qualified as =93ministers=94 for = purposes of the=20 exception because the faculty members were =93intermediaries between the = [Southern=20 Baptist] Convention and the future ministers of many local Baptist = Churches.=94=20 Id.=20 While seminarian policies and philosophies will differ among = institutions,=20 see, e.g., EEOC v. Miss. Coll., 626 F.2d 477, 479 = (5th Cir.=20 1990), Southwestern Baptist is instructive because it recognizes = that=20 seminaries often function similarly to churches or other organized=20 congregations. The Board acknowledges that Tyndale=92s=20 purpose is to train ministers to work in churches. Furthermore, their = faculty=20 members may well be akin to church clergy in addition to providing = general=20 educational instruction on secular subjects.

&nbs= p;=20 I conclude, as does the Court, that the word =93seminary=94 admits a = primarily=20 religious meaning, and now consider whether, consistent with the Free = Exercise=20 Clause, the State may dictate which institutions may call themselves=20 seminaries.

&nbs= p;=20 The Supreme Court has espoused =93a spirit of freedom for religious = organizations,=20 an independence from secular control or manipulation, in short, power to = decide=20 for themselves, free from state interference, matters of church = government as=20 well as those of faith and doctrine.=94 Kedroff v. St. Nicholas Cathedral of the = Russian=20 Orthodox Church in N. Am., 344 U.S. 94, 116 (1952) (declaring=20 unconstitutional a state law that granted ownership of church property = to the=20 American branch of the Russian Orthodox Church). This =93spirit of = freedom=94 is=20 reflected in many of the Court=92s decisions regarding state = interference in the=20 internal affairs of churches and religious organizations. See, e.g., NLRB v. Catholic Bishop of = Chicago, 440=20 U.S. 490 (1979); Gonzalez v. Roman Catholic Archbishop of Manila, = 280=20 U.S. 1 (1929).

&nbs= p;=20 In 1929, the Supreme Court refused to decide whether an individual was = qualified=20 to be a chaplain in the Roman Catholic Church. Gonzalez, 280=20 U.S. at 17. =93Because the = appointment=20 is a canonical act, it is the function of the church authorities to = determine=20 what the essential qualifications of a chaplain are and whether the = candidate=20 possesses them.=94 Id.

&nbs= p;=20 In Catholic Bishop of Chicago, the Supreme Court considered = whether=20 church-operated schools were subject to the jurisdiction of the National = Labor=20 Relations Board (NLRB). 440 U.S. = at=20 491. Although the Court ultimately concluded that Congress did = not intend=20 to include church-operated schools within the purview of the National = Labor=20 Relations Act, the Court admonished that such an exercise of = jurisdiction would=20 raise =93serious First Amendment questions=94 because the NLRB=92s = actions would =93go=20 beyond resolving factual issues.=94 Id. at 502, 504. They would

necessarily involve inquiry into the good-faith of = the=20 position asserted by the clergy-administrators and its relationship to = the=20 school=92s religious mission. It is not only the conclusions that may be = reached=20 by the Board which may impinge on rights guaranteed by the Religion = Clauses, but=20 also the very process of inquiry leading to findings and = conclusions.

Id.

&nbs= p;=20 To decide which institutions are seminaries and which are not, the Board = necessarily would have to make judgments concerning which convictions,=20 doctrines, and faiths are religious in nature and which are not. Because = Tyndale is HEB Ministries=92 training institution = for=20 ministries, the Board would have to consider whether the school is = fulfilling=20 its religious mission to the ministry and if its teachings are = sufficiently=20 =93theological=94 in nature to be a seminary. For the government to = determine=20 whether sincerely professed religious beliefs are actually secular is an = endeavor =93fraught with the sort of entanglement that the Constitution = forbids.=94=20 Hernandez, 490 U.S. at 697. This it cannot = do.=20 See Catholic Bishop of Chicago, 440 U.S. = at 502.=20 Once a person professes a sincere religious conviction or faith, the = person=92s=20 right to her faith is protected by the Constitution and not subject to=20 governmental determinations that they are not religious in nature. = See=20 id. The Board can no more prohibit a church from calling its school = a=20 seminary than it can prohibit a religious congregation from calling = itself a=20 church. HEB Ministries=92 beliefs are protected by the Constitution from = government regulation.

&nbs= p;=20 Because the term =93seminary=94 admits of a primarily religious meaning, = the State=20 has no authority to prohibit Tyndale from = using the=20 term in its title, and may not constitutionally require private = postsecondary=20 institutions to submit to state regulation in order to do so. = Accordingly,=20 section 61.313(a) of the Texas Education Code is unconstitutional to the = extent=20 that it regulates this use of the term =93seminary.=94

&nbs= p;=20 The Court=92s result is the same, but its reasoning is a bit different. = It adds a=20 distinction between religious institutions that teach a primarily = religious=20 curriculum and those which teach a secular curriculum. That distinction = is=20 unnecessary. In my view, a religious institution may teach the = curriculum it=20 desires, religious, secular, or mixed, and call itself a =93seminary=94 = without=20 first submitting to state regulation.

B. State Regulation of Issuance of Degrees by a = Religious=20 Institution

&nbs= p;=20 Religious beliefs are immune from government regulation. See Cantwell = v.=20 Connecticut, 310 = U.S. = 296, 303=20 (1940). Conduct motivated by religious beliefs also enjoys important=20 constitutional protection. See=20 Church of the Lukumi Babalu Aye, = Inc. v. City of=20 Hialeah, 508 U.S. = 520, 531-33=20 (1993). However, the Supreme Court has held that religiously = motivated=20 conduct is not always immune from state regulation. For example, states = may ban=20 the taking of controlled narcotics as a religious practice. Employment Div. v. Smith, 484 U.S. = 872, 890=20 (1990). Government prohibition of the religious practice of = polygamy is=20 not contrary to the constitutional right to religious freedom. Reynolds v. United=20 States, 98=20 U.S. 145, 164-66 (1879). The = Amish are=20 required, as are other employees, to pay social security taxes even = though their=20 faith precludes their participation in government support programs. = United=20 States v. Lee, 455 U.S.=20 252, 258-61 (1982); see Cantwell, 310 U.S. = at 303-04.=20 And church-affiliated day care facilities generally are not exempt from=20 compliance with regulations to protect the health and safety of the = children in=20 their care. State v. Corpus Christi People=92s = Baptist=20 Church, 683 S.W.2d 692, 696-97 (Tex. 1984). To implicate = religious Free=20 Exercise Clause protections, the conduct at issue must be motivated by = religious=20 beliefs, which underlies the debate over whether placing =93Ph.D.=94 at = the top of=20 graduation parchment is religiously motivated conduct. See Lukumi, 508 U.S. at 532.

&nbs= p;=20 The Supreme Court has developed different levels of scrutiny to apply to = state=20 regulations that burden religious conduct. Laws that target religious = practices=20 are subject to the most rigorous constitutional scrutiny under religion = clause=20 jurisprudence. Id. at=20 533. Such state burdens must be narrowly tailored to satisfy a = compelling=20 governmental interest. Id.; = Smith, 494=20 U.S. at 878-79. Laws = that=20 substantially burden a person=92s exercise of religion, even without = expressly=20 targeting religious practices for regulation, are likewise subject to = strict=20 scrutiny. Sherbert v. Verner, 374 U.S. 398, 402-03 (1963); Thomas = v. Review=20 Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981) = (=93The state=20 may justify an inroad on religious liberty by showing that it is the = least=20 restrictive means of achieving some compelling state interest.=94); = Hobbie v. Unemployment Appeals Comm=92n of Fla., 480 U.S. 136, 141 (1987) = (=93The Appeals=20 Commission does not seriously contend that its denial of benefits can = withstand=20 strict scrutiny; rather it urges that we hold that its justification = should be=20 determined under the less rigorous standard . . . . We reject the = argument again=20 today.=94). State action that does not target religion or substantially = burden=20 religious conduct but only incidentally burdens religious practices may = pass=20 constitutional muster if it is otherwise valid and does not impact = religion=20 disparately, i.e., the laws are neutral and generally applicable. = Smith,=20 494 U.S. at 878 (=93[I]f prohibiting the exercise of religion . . . is = not the=20 object of the tax but merely the incidental effect of a generally = applicable and=20 otherwise valid provision, the First Amendment has not been = offended.=94). The=20 Supreme Court rejected the argument that neutral and generally = applicable laws=20 that incidentally burden religious practices are subject to strict = scrutiny and=20 suggested that a reasonable relationship test determines whether they = are=20 constitutional. See id. at 885-86 = & n.3.

&nbs= p;=20 The Supreme Court established these standards in several cases over the = years.=20 Although the opinions have been the subject of an active discussion in = legal=20 publications, the Supreme Court=92s pronouncements are binding until = changed.=20 See Kathleen A. Brady, Religious Organizations and Free = Exercise: The=20 Surprising Lessons of Smith, 2004 BYU L. Rev. 1633 (2004); = Christopher L.=20 Eisgruber & Lawrence G. Sager, The=20 Vulnerability of Conscience: The Constitutional Basis for Protecting = Religious=20 Conduct, 61 U. Chi. L. = Rev.=20 1245 (1994); Douglas Laycock, Formal, Substantive, and Disaggregated=20 Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990); = Douglas=20 Laycock, The Supreme Court and Religious Liberty, 40 Cath. Law. 25 (2000); Michael = W.=20 McConnell, Free Exercise Revisionism and the Smith = Decision, 57=20 U. Chi. L. Rev. 1109 = (1990);=20 Michael W. McConnell & Richard A. Posner, An Economic Approach to = Issues=20 of Religious Freedom, 56 = U. Chi. L.=20 Rev. 1 (1989). In the seminal case of Sherbert v. Verner,=20 the Supreme Court held that a substantial burden on the exercise of = religious=20 beliefs is subject to strict scrutiny. 374 = U.S. = 398, 402-03=20 (1963). A member of the Seventh-day Adventist Church quit = employment that=20 required her to work on her Saturday sabbath, and was=20 subsequently denied unemployment benefits for declining without =93good = cause=94 to=20 accept other employment that also required work on Saturday. Id. at=20 406. The Court framed the issue as =93whether some compelling = state=20 interest enforced in the eligibility provisions of the . . . statute = justifies=20 the substantial infringement of the appellant=92s First Amendment = right.=94=20 Id.=20 Finding no compelling governmental interest = at issue,=20 the Court held that the denial of unemployment benefits violated the = plaintiff=92s=20 free-exercise rights. Id. at = 406-07;=20 see Thomas, 450 U.S. at 718.

&nbs= p;=20 In 1990, the Supreme Court addressed an incidental rather than = substantial=20 infringement on religious conduct. Explicitly addressing for the first = time=20 religious conduct restricted by a state criminal law of general = applicability,=20 the Supreme Court in Smith applied a lower standard to the = constitutional=20 challenge in that case than it did in Sherbert.=20 494 U.S. at 885-86. Two = members of=20 the Native American Church brought a free exercise challenge to = an=20 Oregon law=20 criminalizing the =93knowing or intentional possession of a = =91controlled substance=92=20 unless the substance has been prescribed by a medical practitioner.=94 = Id. at 874=20 (referring to Ore. Rev. Stat. =A7 475.992(4) = (1987)). The=20 plaintiffs were discharged from their jobs for ingesting peyote, a = =93controlled=20 substance=94 under Oregon law, for sacramental purposes = during a=20 Native American Church ceremony. Id. They claimed the = Oregon law = was=20 unconstitutional as applied to them because it interfered with their = exercise of=20 religion. Id.

&nbs= p;=20 The Court reaffirmed that =93first and foremost=94 the Free Exercise = Clause means=20 =93the right to believe and profess whatever religious doctrine one = desires,=94 and=20 precludes =93all =91governmental regulation of religious beliefs = as such.=92=94=20 Id. at 877 (quoting Sherbert, 374=20 U.S. at 402). = Distinguishing=20 the regulation of religious beliefs from the regulation of conduct, the = Court=20 observed that it has =93never held that an individual=92s religious = beliefs excuse=20 him from compliance with an otherwise valid law prohibiting conduct that = the=20 State is free to regulate.=94 Id. at=20 878-79. The right of free exercise =93does not relieve an = individual of the=20 obligation to comply with a =91valid and neutral law of general = applicability on=20 the ground that the law proscribes (or prescribes) conduct that his = religion=20 prescribes (or proscribes).=92=94 Id. at 879=20 (quoting Lee, 455 U.S. at = 263=20 n.3). To require strict scrutiny of the criminal statute in the = case=20 =93would produce . . . a private right to ignore generally applicable = laws . . .=20 [which] is a constitutional anomaly.=94 Id. at 886. The Court held that neither the text of = the=20 Constitution nor Court precedent require that states allow use of a = controlled=20 substance as a religious practice. Id. at 887-88.

&nbs= p;=20 The Court expressly declined to extend the strict scrutiny balancing = test of=20 Sherbert to govern =93the analysis of = generally=20 applicable prohibitions of socially harmful conduct.=94 Id. at=20 889-90. Thus, the state need not establish a compelling interest = to=20 institute incidental burdens on a person=92s religious practices, so = long as it=20 does so through a neutral and generally-applicable criminal law that = does not=20 otherwise violate the Constitution. Id.[8]

&nbs= p;=20 The Court affirmed the holding in Smith three years later in = Lukumi, 508 U.S. 520. Lukumi involved a set of city ordinances = that=20 prohibited the religious sacrifice of animals by the Santeria religion = and=20 imposed criminal sanctions for their violation. Id. at 525-28. The Court reaffirmed =93the general = proposition=20 that a law that is neutral and of general applicability=94 and only=20 incidentally burdens religious practices need not be narrowly = tailored to=20 advance a compelling government interest. Id. at 531-32. The city ordinances at issue were held=20 unconstitutional, however, because they were neither neutral nor = generally=20 applicable but targeted the religious practices of the Santeria = religion.=20 Id. at 541,=20 545-46.

&nbs= p;=20 In Lukumi, the Court observed that = =93if the=20 object of a law is to infringe upon or restrict practices because of = their=20 religious motivation, the law is not neutral.=94 Id. at 533. Although passing facial review, the laws = in question=20 were not neutral because Santeria worship was the =93object=94 or = =93target=94 of the=20 city=92s ordinances. Id. at=20 534-40. The Court determined that the =93design=94 of the laws = accomplished=20 =93a religious gerrymander, an impermissible attempt to target = petitioners and=20 their religious practices.=94 Id. at 535=20 (citation omitted).

&nbs= p;=20 Addressing the =93general applicability=94 requirement, the Lukumi=20 Court observed that =93government, in pursuit = of=20 legitimate interests, cannot in a selective manner impose burdens only = on=20 conduct motivated by religious belief=94 and that this principle =93is = essential to=20 the protection of the rights guaranteed by the Free Exercise Clause.=94 = Id. at=20 543. Although the Court did not define the standard for general=20 applicability, the Court held that =93these ordinances fall well below = the minimum=20 standard necessary to protect First Amendment rights.=94 Id. In = arriving at=20 this conclusion, the Court observed that the ordinances were vastly = underinclusive and included many secular = exemptions.=20 Id. at=20 543-46. Failing both the neutrality and general applicability = prongs, the=20 Lukumi Court = applied =93the=20 most rigorous of scrutiny=94 to the City of Hialeah=92s ordinances and held them=20 unconstitutional because they were =93designed to persecute or oppress a = religion.=94 Id. at=20 547.

&nbs= p;=20 The parties disagree which level of scrutiny should apply to section = 61.304 of=20 the Education Code. HEB Ministries contends that because the State=92s = regulatory=20 scheme provides for secular exemptions, but not religious ones, it is = not=20 neutral and, accordingly, the statutory scheme must be analyzed under = strict=20 scrutiny. See Lukumi, 508 = U.S. at 537, 543-46; see also = Fraternal Order=20 of Police Newark Lodge No. 12 v. City = of=20 Newark, 170=20 F.3d 359, 363 (3d Cir. 1999). Specifically, HEB=20 Ministries points to section 61.303 of the Education Code, which = exempts=20 some institutions from being required to have a Board-issued certificate = of=20 authority if they have been accredited by a state approved accrediting = agency.=20 HEB also cites section 61.313, which exempts some educational = institutions from=20 the prohibition on protected terms if they used the terms =93college=94 = or=20 =93university=94 in their title prior to September 1, 1975. Tex. Educ. = Code =A7=A7 61.303, = 61.313. HEB=20 Ministries further contends strict scrutiny applies because this is a = hybrid=20 rights case involving multiple constitutional claims, including claims = based on=20 the Free Speech Clause, Free Exercise Clause, and Establishment Clause. = See=20 Smith, 494 U.S. at 881.

&nbs= p;=20 The State contends that section 61.304 is neutral and generally = applicable, and=20 therefore under Smith, this Court must not apply the Sherbert strict scrutiny analysis. = According to the=20 State, the laws at issue apply to all private postsecondary educational=20 institutions=97religious and secular alike=97that grant postsecondary = academic=20 degrees. The State also contends there is no evidence that the object of = the=20 statutory scheme was to infringe upon or restrict practices because of = their=20 religious motivation or to suppress religious beliefs.

&nbs= p;=20 As explained in Lukumi, the beginning = point is=20 the statute=92s text, for the minimum requirement of neutrality is that = a law not discriminate on its face. Lukumi, 508 U.S. at 533. A law lacks = facial=20 neutrality if it refers to a religious practice without a secular = meaning=20 discernable from the language or context. Id. A facial reference to = religion in a=20 statute does not necessarily render it presumptively unconstitutional, = see=20 Locke v. Davey, 540 U.S. 712, 725 (2004), nor = is facial=20 neutrality alone determinative. Lukumi, 508=20 U.S. at 533-34. The Free = Exercise=20 Clause, like the Establishment Clause, =93forbids subtle departures from = neutrality,=94 Gillette v. United States, 401 U.S. = 437, 452=20 (1971), and covert suppression of particular religious beliefs. Bowen v. Roy, 476 U.S. 693, 703 (1986) = (opinion of=20 Burger, C.J.). Official action that targets religious conduct for = distinctive treatment cannot be shielded by mere compliance with the = requirement=20 of facial neutrality. =93The Court must survey meticulously the = circumstances of=20 governmental categories to eliminate, as it were, religious = gerrymanders.=94 Walz v. Tax Comm=92n,=20 397 U.S. 664, 696 = (1970)=20 (Harlan, J., concurring); see Lukumi, = 508=20 U.S. at 534.

&nbs= p;=20 According to Tyndale, section 61.304 is=20 unconstitutional because it forces Tyndale = to submit=20 to the State=92s regulations in order to award college degrees to = describe the=20 educational attainment of its students. See Nat=92l Labor Relations = Bd. v.=20 Catholic Bishop of Chicago, 440 U.S. 490, 502 (1979). = Section 61.304=20 precludes private postsecondary institutions from awarding degrees = unless the=20 Board has issued the institution a certificate of authority, and to = obtain such=20 a certificate requires submission to the twenty-one standards governing=20 curriculum, faculty, and school governance. Tex. Educ. = Code =A7 61.304.

&nbs= p;=20 The Legislature explained its purposes for enacting these requirements = for=20 private postsecondary education institutions. =93It is the policy and = purpose of=20 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 . . . .=94 Id. =A7=20 61.301. The Legislature also explained:

Because=20 degrees and equivalent indicators of educational attainment are used by=20 employers in judging the training of prospective employees, by public = and=20 private professional groups in determining qualifications for admission = to and=20 continuance of practice, and by the general public in assessing the = competence=20 of persons engaged in a wide range of activities necessary to the = general=20 welfare, regulation by law of the evidences of college and university=20 educational attainment is in the public interest. To the same end the = protection=20 of legitimate institutions and of those holding degrees from them is = also in the=20 public interest.

Id.

&nbs= p;=20 This Court recognized recently, quoting Brown v. Board of = Education, 347=20 U.S. 483, 493 (1954), that = =93education=20 is perhaps the most important function of state and local = governments.=94 Neely=20 v. West Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 799 (Tex.=20 2005). The United States Supreme Court held that = Congress=92=20 stated purpose in enacting the Higher Education Act of assisting = colleges in=20 ensuring that large numbers of youth obtain educations is a = =93legitimate secular=20 objective entirely appropriate for governmental action.=94 Tilton v. Richardson, 403 U.S. = 672, 679=20 (1971). The Supreme Court further explained that =93[t]here is no = doubt as=20 to the power of a State, having high responsibility for education for = its=20 citizens, to impose reasonable regulations for the control=94 of = education.=20 Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); see also Lemon = v. Kurtzman, 403 U.S. 602 (1971); Pierce v. = Soc=92y of Sisters, 268 U.S. = 510, 534=20 (1925). And the New Jersey Supreme Court held that the privilege of = granting=20 degrees, evidential of academic achievement, is =93very intimately = related to the=20 public welfare, and is unquestionably subject to regulation by the = State.=94=20 Shelton Coll. v. State Bd. of Educ., = 226 A.2d=20 612, 618 (N.J. 1967) (quoting Elliott,=20 The Colleges and the Courts 200 (1936)). The purpose of ensuring = the=20 quality of postsecondary education provided by institutions in this = State and=20 protecting the integrity of college degrees issued therefrom is plainly within the State=92s = substantial interest=20 in education.

&nbs= p;=20 The Legislature=92s objective is to ensure that the granting of a degree = is a=20 meaningful act grounded in established curricular and instructional = standards=20 and that persons who rely on a postsecondary degree, lawfully issued by = a=20 Texas=20 institution, may accurately presume a level of competence and = qualification.=20 See Tex. Educ.=20 Code =A7 = 61.301. The=20 Legislature enforces this objective in education, an area in which it = has a=20 substantial and legitimate interest. See Yoder, 406 = U.S. = at 213;=20 Neely, 176 S.W.3d at 753. Moreover, all postsecondary = institutions,=20 whether secular or religious, private or public, must submit to the = State=92s=20 standards to grant college or graduate degrees. See Tex. Educ. = Code =A7=A7 61.0512, 61.304; 19 = Tex. Admin. Code =A7 7.7(13) (requiring certain = degree=20 programs at private postsecondary institutions to include =93Humanities = and Fine=20 Arts, Social and Behavioral Sciences, and Natural Sciences and = Mathematics=94 as=20 well as =93courses to develop skills in written and oral = communication=94). An=20 institution may operate outside those standards if it chooses to use=20 nomenclature on its graduation documents other than college or graduate = degrees=20 (e.g., bachelor=92s level certificate), but to issue degrees it must = comply with=20 public standards. There is no disparate treatment of any category of=20 institutions.

&nbs= p;=20 The law here is neutral and generally applicable and prohibits the = unauthorized=20 issuance of college and graduate degrees, currently enforced by both = civil and=20 criminal penalties. The Supreme Court held in Smith that = individuals must=20 comply with valid laws prohibiting conduct that the State is free to = regulate.=20 494 U.S. at 878-79. In = this case,=20 I do not believe the Constitution bans states from promulgating = generally=20 applicable standards that must be met before postsecondary institutions = may=20 confer degrees on its students.[9]

&nbs= p;=20 The Office of the Attorney General for the State of Texas has = opined on this=20 very issue: whether rights under the Free Exercise Clause permit a = religious=20 organization to operate a degree-awarding university without compliance = with=20 state standards. Op. Tex. = Att=92y Gen. No. JC-0200=20 (2000). Attorney General John Cornyn = concluded=20 that =93the application to religious educational institutions of state = laws=20 regulating the awarding of degrees does not violate the law restricting=20 governmental burdens on the free exercise of religion. Id.[10]

&nbs= p;=20 The only other state supreme court to address = this=20 issue also reached the same outcome. The Tennessee Supreme Court held = that the=20 Tennessee Postsecondary Education Authorization Act=92s prohibition on = the=20 issuance of degrees by postsecondary institutions, unless they complied = with=20 state standards, did not violate the Free Exercise Clause of the First=20 Amendment. McLemore v. Clarksville Sch. of = Theology,=20 636 S.W.2d 706 (Tenn. 1982). It held that the = granting=20 of degrees is =93unquestionably subject to regulation by the State=94 = and is not a=20 religious activity. 636 S.W.2d at 709; see Shelton Coll. v. State Bd. = of=20 Educ., 226 A.2d 612 (N.J. 1967) = (rejecting a claim=20 that the First Amendment right of free speech prohibited the state from=20 regulating the power to confer a bachelor=92s degree).

&nbs= p;=20 To the extent an institution desires to enter into this sphere of = legitimate=20 state regulation=97e.g., the granting of college, university, and = graduate degrees=20 by private postsecondary educational institutions=97it must comply with = state=20 mandates that are not unnecessarily intrusive and are prompted by = legitimate=20 objectives. See Smith, 494 U.S. at 878-79; Lee, 455=20 U.S. 252, 261 (1982). A = contrary=20 conclusion would allow entities, regardless of their motives, to = circumvent the=20 statutory requirements under the guise of religious practices by issuing = degrees=20 supported by little or no meaningful educational attainment. This would=20 undermine the legitimate objectives of precluding issuance of fraudulent = degrees=20 and ensuring that society could rely on the attainment of a college = degree as=20 evidence of meaningful postsecondary educational accomplishment.

&nbs= p;=20 Because in this case Tyndale is engaging in = commercial=20 conduct the State is free to regulate=97the granting of educational = =93degrees,=94=20 =93associate degrees,=94 =93bachelor=92s degrees,=94 =93master=92s = degrees,=94 and =93doctorate=20 degrees,=94=97I conclude that section 61.304 of the Education Code does = not offend=20 the Free Exercise Clause of the United States Constitution. See = id. at 878-79; Lukumi, 508=20 U.S. at 531-33.

&nbs= p;=20 The plurality concludes that Tyndale has a=20 constitutional right to issue college and graduate degrees without = compliance=20 with the Legislature=92s standards. Of course, Tyndale=20 does not frame its case in this fashion because the idea in this context = that=20 only one type of postsecondary institution, a seminary, has an = unfettered=20 constitutional right to put the title =93college degree=94 at the top of = its=20 graduation documents, without regard to compliance with public = standards, is a=20 tenuous notion. Instead, Tyndale enmeshes = its argument=20 on this issue with the bedrock principle that the State cannot regulate = the=20 doctrinal beliefs and teachings of a church=92s school. Wrapped in this=20 theological flag, Tyndale=92s arguments then = focus on=20 religious beliefs and bury the real issue of the appropriate words to = title a=20 graduation document beneath it. I disagree that the Constitution bars = the=20 Legislature from establishing generally applicable standards for the = granting of=20 postsecondary educational degrees. This question concerns = conduct=97whether Tyndale can put =93college degree,=94 with no = disclaimer or=20 explanation that it does not comply with public standards at the top of = its=20 graduation documents. No one, including the Board, disputes Tyndale=92s right to believe and teach whatever it = chooses and=20 hire whomever it desires to do so.

&nbs= p;=20 Of course, it sounds patently offensive to religious freedoms to assert = that the=20 State is barring Mother Teresa and Reverend Billy Graham from teaching = at a=20 seminary, and if correct, it would be. But doctrine and instruction are = not=20 tantamount to stamping a title on a piece of parchment handed out at = graduation.=20 Governments cannot regulate what a seminary teaches, who it hires to = teach, or=20 how its administration is structured. These matters are central to the=20 seminary=92s beliefs and convictions, and the freedom to believe as one = chooses is=20 absolute. See Braunfeld v. = Brown, 366=20 U.S. 599, 603 (1961). = Typing the=20 letters =93Ph.D.=94 on a parchment is an act that is not inherent to = Tyndale=92s religious beliefs or engaged in for = religious=20 reasons, and should not be accorded constitutional protection under the = religion=20 clauses. See Smith, 494 U.S. at 877. The = Legislature could=20 decide to allow it, but the Constitution does not require it. The = plurality=20 strains to persuade that because the Board does not allow Tyndale to confer degrees without compliance with = the=20 statutes, that it is dictating the doctrine that may be taught at the = seminary.=20 I remain unconvinced.[11] Tyndale,=20 however, is correct that it should be able to use meaningful = designations on=20 =93official looking paper=94 to convey what it believes to be = substantial=20 educational achievement. (See infra, Section III). This does not = require,=20 as the plurality concludes, creation of a constitutional right of = religious, but=20 not non-religious, postsecondary institutions to issue college and = graduate=20 degrees. Although different from this case, the plurality=92s reasoning = would=20 grant a constitutional right to a religious group to confer a doctor of=20 philosophy degree on a graduation parchment after providing an hour of=20 instruction.

&nbs= p;=20 The Education Code=92s broad definition of the term =93degree=94 = precludes use of many=20 words similar to =93degree.=94 Tyndale = asserts that=20 section 61.304 of the Education Code, by virtue of the definition of = =93degree=94 in=20 61.302(1), regulates virtually all useful terminology that it may use to = convey=20 the educational achievement of its students. Although I believe that the = granting of degrees is conduct the Legislature may regulate, the = State=92s attempt=20 to regulate Tyndale=92s use of any language = suggesting a=20 similar or competing level of educational competency also must be valid = under=20 the Free Speech Clause of the First Amendment.

III

Free Speech

&nbs= p;=20 HEB Ministries contends that the State=92s regulatory scheme violates = its rights=20 to free speech under the First Amendment of the United States = Constitution=20 because the State has usurped virtually all terms it could reasonably = use to=20 describe the educational achievement of its students. See U.S. Const. amend. I, cl. 3 = (=93Congress shall=20 make no law . . . abridging the freedom of speech . . . .=94); Tex. Const. art. I, =A7 8 = (=93Every person=20 shall be at liberty to speak, write or publish his opinions on any = subject,=20 being responsible for the abuse of that privilege; and no law shall ever = be=20 passed curtailing the liberty of speech or of the press.=94). The State, = in=20 contrast, asserts that the speech at issue is commercial speech and, = pursuant to=20 federal constitutional law, the State has a substantial interest in = curtailing=20 the proliferation of diploma mills and assuring that indicia of = educational=20 attainment are accurate, and that the challenged statutes directly = advance that=20 governmental interest. HEB contends that, even if the speech at issue is = commercial, the State must still show that the speech restrictions are = narrowly=20 drawn to serve that substantial interest. Tyndale=92s=20 contention is that the State=92s regulation of any title, word, = appellation, and=20 other terminology not only =93equivalent=94 to degree but suggesting a = course of=20 study toward a postsecondary degree or =93its equivalent=94 is an = unconstitutionally=20 broad prohibition on Tyndale=92s free-speech = rights.

&nbs= p;=20 The court of appeals agreed with the State that its regulation of the = terms=20 =93degree,=94 =93associate,=94 =93bachelor,=94 =93master,=94 = =93doctor,=94 and other =93equivalents=94=20 in sections 61.304 and 61.302(1) targets commercial speech. 114 S.W.3d at 631-32. The Supreme Court=92s case = law confirms=20 that determination. Commercial speech is speech that seeks to propose a=20 commercial transaction or is expression that serves the economic = interests of=20 the speaker. Bd. of Trs. v. Fox, 492=20 U.S. 469, 473 (1989); = Bolger v.=20 Youngs Drug Prods. Corp., 463 U.S. 60, 64 (1983);=20 Cent. Hudson Gas & Elec. Corp. v.=20 Pub. Serv. Comm=92n,=20 447 U.S. 557, 561 = (1980);=20 Va. State Bd. of Pharmacy v. Va. Citizens = Consumer=20 Council, Inc., 425 = U.S. = 748, 762=20 (1976). The First Amendment=92s protection of = commercial speech=20 is based on advertising=92s informational function, which equips persons = to act in=20 their own best interests. Cent. = Hudson,=20 447 U.S. at 562-63. To help = fulfill this=20 goal, there is a =93constitutional presumption favoring disclosure over=20 concealment,=94 because =93disclosure of truthful, relevant information = is more=20 likely to make a positive contribution to decisionmaking than is concealment of such = information.=94=20 Peel v. Attorney Registration & Disciplinary Comm=92n, 496 U.S. 91, 108, 111 (1990); see Ibanez = v.=20 Fla. Dept. of=20 Bus. & Prof=92l = Regulation, 512 U.S. 136, 142=20 (1994). The First Amendment presumes that some = accurate=20 information is better than no information at all. Cent. Hudson, 447 U.S. = at 562. On=20 this basis, the Supreme Court held that use of the designations CPA = (certified=20 public accountant) and CFP (certified financial planner) are commercial = speech.=20 Ibanez, 512 U.S. at 143-44. The terms = =93Dr.=94 and=20 =93Ph.D.=94 have also been held to be commercial speech. Strang v. = Satz, 884 F. Supp. 504, 507 (S.D. Fla. = 1995). The=20 title =93M.D.=94 has also been analyzed under the commercial speech = doctrine. State ex rel. State Bd. of Healing Arts v. = Thomas,=20 97 P.3d 512, 523-24 (Kan. Ct. App. 2004). The conferral of = degrees is=20 largely a commercial activity and a privilege granted to institutions by = the=20 states in which they operate. See Nova Univ. v. Educ. Inst. Licensure Comm=92n,=20 483 A.2d 1172, 1181 (D.C. 1984) (=93degree conferral is business = conduct, a=20 corporate privilege conferred by the state of incorporation,=94 and = accordingly,=20 =93[e]ducational institutions have no = inherent or=20 constitutional right to confer degrees=94). Courts have treated the = display of=20 terms such as =93fellow,=94 =93associate fellow,=94 =93board = certified,=94 =93certified,=94 and=20 =93specialist=94 as commercial speech. See Borgner v. Brooks, 284 F.3d 1204, = 1207, 1210=20 (11th Cir. 2002) (relying upon the Eleventh Circuit=92s treatment of the = title=20 =93psychologist=94 in Abramson v. Gonzalez, 949 F.2d 1567, = 1574-75 (11th Cir.=20 1992)); Potts v. Hamilton, 334 F. Supp. 2d 1206, 1209, 1213-15 = (E.D. Cal.=20 2004); Bingham v. Hamilton, 100 F. Supp. 2d 1233, 1234-35, 1239 = (E.D.=20 Cal. 2000) (all three cases involve statutes prohibiting dentists, who=20 specialize in implant dentistry and are certified by organizations not=20 recognized by the state, from advertizing = certain=20 credentials).

&nbs= p;=20 Tyndale provides educational and ministerial = training=20 courses to its students and the students pay tuition and fees. Tyndale=92s conferral of titles on its graduating = students and=20 advertisement of information about degrees it awards to graduating = students is=20 commercial speech.

&nbs= p;=20 Restrictions on commercial speech are reviewed under the test = established in=20 Central Hudson, 447 U.S. 557. The Constitution = =93accords a=20 lesser protection to commercial speech than to other constitutionally = guaranteed=20 expression.=94 Id. at=20 563. The State may ban commercial speech which concerns unlawful = activity=20 or is false, deceptive, and misleading. Ibanez, 512=20 U.S. at 142; = Cent.=20 Hudson, 447 U.S. at 566. Otherwise, = commercial=20 speech may not be restricted unless 1) the government has a substantial = interest=20 in restricting the speech, 2) the regulation directly advances the = asserted=20 governmental interest, and 3) the speech restrictions are narrowly drawn = such=20 that they are no more extensive than necessary to serve that interest. = Cent. Hudson, 447 U.S. = at 566. The=20 Court clarified in Fox, 492 U.S. at 480, that the = requirement of=20 narrowly constructing the restriction does not compel the state to = employ the=20 restriction that is =93absolutely the least severe that will achieve the = desired=20 end.=94 The law requires that the restriction of commercial speech be in = proportion to the interest served. Id. The proponent of the = restriction on=20 commercial speech carries the burden of justifying it. Edenfield v. = Fane, 507=20 U.S. 761, 770 = (1993).

&nbs= p;=20 The parties do not dispute that the speech at issue concerns lawful = activity and=20 the Board does not contend that the expression is false. The State = contends only=20 that it seeks to regulate Tyndale=92s = potentially=20 deceptive speech. As previously observed, the State=92s interest in = ensuring the=20 quality of postsecondary educational institutions that issue degrees in = this=20 state is substantial. And Tyndale does not = contest=20 that the State has a substantial interest in regulating private = postsecondary=20 education, or that the State may endeavor to assure that degrees = accurately=20 portray educational attainment and to prevent the operation of illegal = diploma=20 mills. I consider the other two prongs of the test for permissible = regulation of=20 commercial speech and determine whether sections 61.304 and 61.302(1) of = the=20 Education Code directly advance the State=92s interest, and whether = narrower=20 limitations could be crafted to ensure the potentially misleading = information is=20 presented in a nonmisleading manner.

&nbs= p;=20 Restricting an unaccredited institution=92s ability to award degrees = directly=20 advances the State=92s interest because

degrees and equivalent indicators of educational = attainment=20 are used by employers in judging the training of prospective employees, = by=20 public and private professional groups in determining qualifications for = admission to and continuance of practice, and by the general public in = assessing=20 the competence of persons engaged in a wide range of activities = necessary to the=20 general welfare.

Tex. Educ. = Code =A7 61.301. The = Legislature may=20 also address conduct that attempts to accomplish indirectly that which = is=20 prohibited directly in the statute. Thus, for example, the State may = preclude an=20 institution that does not meet its standards from lawfully calling its=20 graduation documents master=92s degrees yet representing through other = means that=20 =93certificates=94 it issues have complied with the State=92s = educational standards=20 for a master=92s degree.

&nbs= p;=20 Tyndale responds that the State=92s nearly = complete=20 usurpation of reasonable terms to describe postsecondary educational = attainment=20 is not tailored to directly serve the State=92s objectives. Unless = certified by=20 the Board, the statute bars a postsecondary institution=92s use of = =93any=20 title or designation, mark, abbreviation, appellation, or series of = letters or=20 words, including associate, bachelor=92s, = master=92s,=20 doctor=92s, and their equivalents=94 to describe private = postsecondary=20 achievement which leads to a degree or partially fulfills a degree = program =93or=20 its equivalent.=94 Id. =A7 61.302(1) (emphasis = added). The=20 State responds that HEB could issue =93certificates,=94 =93advanced = certificates,=94=20 =93diplomas,=94 or =93higher diplomas=94 so long as it refrains from = describing them as=20 equivalent to an associate=92s, bachelor=92s, = master=92s, or=20 doctor=92s degree. The State also contends that the statutes are = narrowly tailored=20 because HEB Ministries is still free to advertize its=20 qualifications, services, and missions, so long as it does not use the = protected=20 terms=97degree, associate, bachelor=92s, master=92s, and = doctor=92s=97that suggest=20 approval by the State and satisfaction of minimum educational standards = that=20 society has come to expect of these terms. The State also argues the = statutes=20 are narrowly tailored because Tyndale could = not be=20 fined for, and would not be prohibited from issuing, for example, a = =93diploma=94 or=20 =93certificate=94 because these terms by themselves do not signify, = purport to=20 signify, and are not generally taken to mean =93a program of study = leading to an=20 associate, bachelor=92s, master=92s, or doctor=92s degree or its = equivalent.=94[12] See id.

&nbs= p;=20 A plain reading of the statute conveys a much broader prohibition than = the Board=20 concedes. First, under the statute a =93degree=94 includes the protected = terms=20 associate, bachelor=92s, master=92s, doctor=92s and degree. Id. = Generally, the=20 definition requires that for protected words or titles to trigger state=20 regulation, they be described or perceived as leading to a degree at the = associate, bachelor=92s, master=92s or doctorate level.

&nbs= p;=20 The Board asserts that an institution must be certified to use any of = these=20 protected terms by themselves because they suggest and are generally = understood=20 to indicate that a recipient completed part or all of a program leading = to a=20 degree. The statutory language indeed extends that broadly. Second, the = statute=20 also defines a =93degree=94 to include any word, title, designation, = series of=20 letters, or similar terminology to the protected terms that suggest = study toward=20 a state-recognized degree. Further extending the scope of the statute, = the=20 Legislature barred use of =93any title,=94 =93designation,=94 = =93words,=94 =93mark,=94 =93series=20 of letters,=94 or =93appellation=94 that conveys study leading to a = degree, or any=20 similar posteducational achievement. = Id. = The language=20 of 61.302(1) encompasses virtually every term that could reasonably = provide a=20 useful description of educational achievement at a postsecondary = educational=20 institutional. The legislation bans unapproved programs from using any = of the=20 protected terms, any words, letters, or titles that are similar to the = protected=20 terms and any words that suggest a program leading to a college or = graduate=20 degree or any words that are similar to the titled programs. The = language of=20 section 61.302(1) supports the Board=92s fines for use of the word = =93diploma=94 and=20 =93certificate=94 and provides a basis for fining unaccredited = institutions for=20 using the phrases =93bachelor=92s level diploma=94 and =93comparable to = an associate=92s=20 degree.=94 The statute impermissibly bars Tyndale from=20 issuing a master=92s level certificate or an associate=92s level = diploma, terms=20 which do not convey state certification of a degree, but do convey = postsecondary=20 education accomplishment. A majority of the Court decides that for = religious=20 instruction by religious schools, the regulation of educational = terminology=20 under the statute=92s broad definition of degree violates constitutional = standards. ____ S.W.3d ____. (In Section = III.C., the=20 plurality states that =93the use of any words remotely resembling = ordinary=20 education terms is risky=94).[13] The appellations that the = public=20 understands to indicate college and graduate level study would all be = equivalent=20 or similar to the protected terms and =93their equivalents.=94

&nbs= p;=20 The Board=92s concession that Tyndale may = use=20 =93certificate=94 or =93diploma=94 on its graduation documents without = state approval is=20 not helpful. Under the statute, the words =93diploma=94 and = =93certificate=94 certainly=20 are =93titles,=94 =93words,=94 or =93appellations=94 and they are = similar to the protected=20 term =93degree.=94 Thus, by its terms the statute bars any use of = =93diploma=94 and=20 =93certificate=94 that may indicate completion of all or part of a = program leading=20 to a degree. However, even if the Board=92s concession is correct under = the=20 language of the statute, the concession is not useful without being able = to tie=20 the terms =93diploma=94 or =93certificate=94 to some description of a = recognized or=20 similar level of postsecondary educational attainment, and the statute = precludes=20 making that connection. For example, Tyndale = could=20 likely issue a =93diploma of theological studies=94 which would not = convey its=20 apparent belief that its program is comparable to college level course = work=20 because diplomas generally are issued at the high school educational = level.=20 See Brief for Independent Colleges and Universities of = Texas, Inc.=20 as Amicus Curiae at 12-13 (explaining that there is a public perception = that a=20 degree qualifies an individual to perform in their chosen field of = study.)[14] If Tyndale=20 issued a =93diploma of bachelor=92s level studies=94, which would more = accurately=20 convey its contentions about its program, that title would violate the = statute.=20 The Board concedes the use of terms that would not allow Tyndale to accurately describe its belief about = the level or=20 quality of it programs. The Board=92s concession does not resolve the = free speech=20 problems Tyndale raises.

&nbs= p;=20 Section 61.302(1)=92s prohibitions on First Amendment expression further = preclude=20 private postsecondary educational institutions from advertising = comparisons with=20 state-certified institutions. For example, the Board objects to Tyndale=92s description of its Diploma of = Theological Studies=20 as =93stronger . . . than the typical Bachelors in Biblical Studies.=94 = Such a=20 description suggests that Tyndale=92s = program is better=20 than state-certified Bachelor=92s Degree programs.[15] Fining private institutions = for making=20 legitimate comparisons that their programs are similar to or better than = state-certified programs leading to a degree does not equip persons to = act in=20 their own interests. Instead, it punishes institutions for disclosure of = truthful, relevant information that is likely to make a positive = contribution to=20 decision making. See Peel, 496 U.S. at 108; Cent. = Hudson, 447=20 U.S. at 567-68. This = restriction=20 contradicts the First Amendment=92s purpose for commercial speech.

&nbs= p;=20 Moreover, the applicable portions of sections 61.304 and 61.302(1) = operate as a=20 ban on not only potentially misleading speech but also on truthful = speech. Tyndale issued diplomas and certificates which may = be as=20 good as or better than some state-certified programs, and other private=20 institutions, whether religious or nonreligious, would have the same = complaint=20 that legitimate comparisons are being improperly silenced. The = regulation is=20 more extensive than necessary to serve the State=92s legitimate = interests. Under=20 61.302(1), Tyndale cannot use any terms that = are=20 similar to the protected terms, and it cannot describe its programs as = similar=20 to or better than state-approved programs = leading to a=20 degree. The statute cuts an impermissibly broad swath through protected=20 commercial speech.

&nbs= p;=20 As previously stated, the standard for judging restrictions on = commercial speech=20 is that the restriction be in proportion to the interest served. = Fox, 492=20 U.S. at 480. The = availability of more=20 limited alternatives that are less restrictive of speech is strong = support for a=20 conclusion that the regulation does not directly advance the desired = goal. Thompson v. W. States Med. Ctr., 535 = U.S. = 357, 371=20 (2002). The Supreme Court=92s analysis indicates that courts = should inquire=20 whether the government could achieve its interests in a manner that does = not=20 restrict speech or is less restrictive of commercial speech. Id. = The answer to=20 this inquiry will help illuminate whether the regulation directly = advances the=20 governmental interest and is more extensive than necessary to serve that = interest. Id. at 371, 373 (noting that =93we have made clear that = if the=20 Government could achieve its interests in a manner that does not = restrict=20 speech, or that restricts less speech, the Government must do so=94 and = that even=20 with commercial speech, =93regulating speech must be a last=97not = first=97resort.=94).=20

&nbs= p;=20 Tyndale notes that narrower limitations = could achieve=20 the Legislature=92s desired objectives by requiring, for example, = reasonable=20 disclaimers or disclosures that certificates and diplomas Tyndale may issue are not approved by the State = and that=20 Tyndale itself is not accredited by the = State. The=20 Supreme Court has recognized =93the possibility that some limited = supplementation,=20 by way of warning or disclaimer or the like, = might be=20 required=94 rather than a ban on commercial speech. Bates, 433 U.S. at 384; see, e.g., = Peel, 496=20 U.S. at 110 (providing = similar=20 disclosure examples); Cent. Hudson, 447 U.S. at 570 = (holding the state=92s interest could be addressed by including accurate = descriptive information rather than banning the speech); Strang, 884 F. Supp. at 510 (holding the = same with=20 respect to statute that prohibited use of =93Ph.D.=94 or the title = =93doctor=94 unless=20 obtained from an institution recognized by the state). Such measures may = achieve=20 the State=92s desired objective and be more likely to provide useful and = accurate=20 information to contribute to the public=92s decisionmaking than would banning=20 all such information from the institution. See Ibanez, 512=20 U.S. at 142.[16] In the present context, = reasonable=20 disclaimers regarding the theological certificates and diplomas could = serve to=20 better inform the public of Tyndale=92s = students=92=20 educational achievements than would a complete ban on their ability to=20 accurately describe such achievements. The Education Code currently = includes=20 such a disclosure for the granting of honorary degrees. Tex. Educ. = Code =A7 61.312. Thus, I = conclude=20 the State has not carried its burden of showing that its regulation of = this=20 commercial speech directly advances its interest because the regulation = is more=20 extensive than necessary to serve the Legislature=92s legitimate = purposes. See=20 Cent. Hudson, 447 U.S. at 570.

Conclusion

&nbs= p;=20 Accordingly, I would reverse the court of appeals judgment and vacate = the fines=20 assessed by The Texas Higher Education Coordinating Board against HEB=20 Ministries.

&nbs= p; = ; = &= nbsp; &n= bsp; =20 ________________________________________

&nbs= p; = ; = &= nbsp; &n= bsp; =20 J. Dale Wainwright

&nbs= p; = ; = &= nbsp; &n= bsp; =20 Justice

OPINION=20 DELIVERED: August 31, 2007

^[1]=20 HEB Ministries is unrelated to the H.E. Butt Grocery Company, which is = also=20 commonly referred to as =93HEB.=94

^[2]=20 Because their interests are aligned, I use the terms =93HEB=94 and = =93Tyndale=94 interchangeably.

^[3]=20 Section 61.313(a)(1) prohibits a private postsecondary educational = institution=20 from using the term =93seminary=94 in its official name unless the = entity first=20 obtains a certificate of authority from the Board or becomes accredited = by a=20 state-approved accrediting agency. Tex.=20 Educ. Code =A7 61.313(a)(1); see = also id. =A7=20 61.303(a) (exempting accredited institutions).

^[4]=20 The court of appeals stated that =93Tyndale = has=20 steadfastly refused to participate in any of the alternative processes = available=20 under the statutory oversight plan.=94 114 S.W.3d at = 630.=20 Tyndale has, however, along with seven other = unaccredited religious schools, endeavored to create its own accrediting = agency,=20 which the State does not recognize at this time.

^[5]=20 The Texas Constitution is more explicit in its protection of the freedom = to=20 worship. =93All men have a natural and indefeasible right to worship = Almighty God=20 according to the dictates of their own consciences.=94 Tex. Const. art. I, =A7=20 6. The issues are briefed under the U.S. Constitution with = reference to=20 analogous provisions in the Texas Constitution. The plurality concludes = that the=20 Texas Constitution is =93coextensive=94 on the issues raised. As neither = party=20 addresses in substance the application of the Texas Constitution to = these issues=20 and neither asserts any difference in the jurisprudence between the two=20 constitutions, I would =93limit our analysis to the First Amendment and = simply=20 assume that its concerns are congruent with those of [the Texas = Constitution].=94=20 See New Times, Inc. v. Isaacks, 146 S.W.3d 144, 150 (Tex. 2004).

^[6]=20 The Free Worship Clause of the Texas Constitution provides in its = entirety:

All men have a natural and indefeasible right = to worship=20 Almighty God according to the dictates of their own consciences. No man = shall be=20 compelled to attend, erect or support any place of worship, or to = maintain any=20 ministry against his consent. No human authority ought, in any case = whatever, to=20 control or interfere with the rights of conscience in matters of = religion, and=20 no preference shall ever be given by law to any religious society or = mode of=20 worship. But it shall be the duty of the Legislature to pass such laws = as may be=20 necessary to protect equally every religious denomination in the = peaceable=20 enjoyment of its own mode of public worship.

Tex. Const.=20 art. I, =A7 = 6.

^[7]=20 The Establishment Clause cases consider whether some form of government = aid,=20 either direct or indirect, improperly entangles the government in = religion.=20 Walz v. Tax Comm=92n, 397 U.S. 664, 670-75 (1970); see = also Church=20 of the Lukumi Babalu Aye,=20 Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). In this case, HEB = does=20 not challenge government aid or support of religion or religious symbols = but=20 complains of state regulation of its activities. The Supreme Court = decided in=20 Lukumi that because the dispute = raised a=20 question of the freedom to worship in the face of governmental = regulation,=20 rather than governmental efforts to benefit or favor religion, the Free = Exercise=20 Clause was dispositive. 508 = U.S. = at 532;=20 see also People=92s Baptist, 683 S.W.2d at 695.

^[8]=20 Distinguishing its prior holdings in Free Exercise Clause cases, the = Supreme=20 Court stated that the =93only decisions in which we have held that the = First=20 Amendment bars application of a neutral, generally applicable law to = religiously=20 motivated action have involved not the Free Exercise Clause alone, but = the Free=20 Exercise Clause in conjunction with other constitutional protections, = such as=20 freedom of speech and of the press.=94 Smith, = 484=20 U.S. at 881 = (citing, among=20 others, Cantwell, 310 U.S. at 304-07; Murdock = v.=20 Pennsylvania, 319 U.S. 105 (1943); and Wisconsin v. Yoder, = 406 U.S.=20 205 (1972)). The Court determined that Smith did not = present a=20 =93hybrid rights=94 case, and therefore did not elaborate on the=20 exception.

^[9]=20 The Southern Baptist Convention=92s theological seminary agrees that = pursuant to=20 its constitutional interest in education, the State may =93forbid = institutions=20 from using the words =91bachelor=92s degree,=92 =91master=92s degree,=92 = etc., unless=20 certain defined program requirements are satisfied.=94 Brief for=20 Southwestern Baptist Theological Seminary as Amicus Curiae at = 14.

^[10] The Attorney General=92s opinion = considered=20 the Supreme Court=92s free exercise jurisprudence. A Texas statute = required=20 application of the strict scrutiny test for substantial government = burdens on=20 religious practices. Tex. Civ. = Prac.=20 & Rem. Code = =A7 110.001=20 et seq. This mimicked the standard required by the = Supreme=20 Court in Sherbert v. Verner, 374 U.S. 398 (1963). Although I do not = think the=20 result here would change if the statute applied, the statute is = inapplicable as=20 its effective date was after the accrual of the cause of action in this = case.=20 See Tex. Civ. Prac. = & Rem. Code =A7 = 110.001 et=20 seq.

^[11] The plurality=92s rationale is in = tension=20 with the Supreme Court=92s Smith and Lukumi decisions.

^[12] Webster=92s Dictionary defines = =93equivalent as=20 similar or alike in significance or import.=94 Webster=92s Third New International=20 Dictionary 769 (1961). The Oxford Dictionary defines = =93equivalent=94=20 as having equal or corresponding import or meaning. The Oxford Illustrated Dictionary = 283 (2nd=20 ed. 1975).

^[13] We disagree on which = constitutional=20 provisions are infringed. I would base the decision on commercial speech = rights,=20 and the plurality would decide this point under the Free Exercise=20 Clause.

^[14] The Independent Colleges and Universities of = Texas, Inc.=20 is a nonprofit association of the State=92s accredited private colleges = and=20 universities. It represents the majority of the State=92s private = undergraduate=20 institutions.

^[15] If the description indicated that = Tyndale=92s program in theological studies was = certified by=20 the State, the speech would be false and subject to legitimate=20 regulation.

^[16] Some states have adopted this = scheme and=20 allow unaccredited religious institutions to grant degrees if certain = disclosure=20 requirements are met. See, e.g., Fla. Stat. =A7 1005.06(f)(3); Md. = Code=20 Educ. =A7 11-202(c)(2).