IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════&#= 9552;═══

No. 03-0995

════════λ= 2;═══

HEB Ministries, = Inc.,=20 Southern Bible Institute,

and Hispanic Bible = Institute , Petitioners,

Texas Higher Education=20 Coordinating Board

and Commissioner = Raymund Paredes ,=20 Respondents

════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══════════ = 552;═

On Petition for Review from = the

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

════════&#= 9552;═════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══

Argued January 5,=20 2005

&nbs= p;=20 Justice Hecht announced = the=20 judgment of the Court and delivered the opinion for the Court with = respect to=20 Part I, in which Chief Justice = Jefferson,=20 Justice O=92Neill, Justice Wainwright, Justice Brister, Justice Medina, = Justice=20 Green, and Justice Johnson joined, and = with=20 respect to Part III-B, in which Chief=20 Justice Jefferson, Justice O=92Neill, Justice Brister, Justice = Medina, and Justice Green joined, and an = opinion=20 with respect to Parts II, III-A, and III-C, in which Justice O=92Neill, Justice = Brister, and=20 Justice Medina = joined.

Justice Wainwright filed an = opinion=20 concurring in part and dissenting in part, and concurring in the = judgment, in=20 which Justice Johnson = joined.

Chief Justice Jefferson filed = an opinion=20 concurring in part and dissenting in part, in which Justice Green joined.

Justice Willett took no part = in the=20 decision of the case.

=20 The State of Texas requires a private post-secondary school to = meet=20 prescribed standards before it may call itself a =93seminary=94 or use = words like=20 =93degree=94, =93associate=94, =93bachelor=94, =93master=94, and = =93doctor=94 =97 or their equivalents=20 =97 to recognize attainment in religious education and training. We must = decide=20 whether this requirement impermissibly intrudes upon religious freedom = protected=20 by the United=20 States and Texas Constitutions. We hold = it does=20 and therefore reverse the judgment of the court of appeals[1] and remand the case to the = trial court=20 for further proceedings.

&nbs= p;=20 The State of Texas goes to great lengths to ban = =93diploma=20 mills=94 =97 what Webster=92s Dictionary defines as = =93institution[s] of higher=20 education operating without supervision of a state or professional = agency and=20 granting diplomas which are either fraudulent or because of the lack of = proper=20 standards worthless=94.[2] The Higher Education = Coordinating Act of=20 1965, codified as chapter 61 of the Texas Education Code,[3] states that =93the policy and = purpose of=20 the State of Texas [are] to prevent deception of the public resulting = from the=20 conferring and use of fraudulent or substandard college and university = degrees=20 [and] to regulate the use of academic terminology in naming or otherwise = designating educational institutions, the advertising, solicitation or=20 representation by educational institutions or their agents, and the = maintenance=20 and preservation of essential academic records.=94 [4]

&nbs= p;=20 To achieve this purpose, subchapter G of the Act denies a =93private=20 post-secondary educational institution=94 [5] use of certain terminology = common to=20 graduate education unless it has a certificate of authority from the = Texas=20 Higher Education Coordinating Board.[6] Section 61.313 restricts what = an=20 institution can call itself. As originally enacted in 1975, it = restricted use of=20 only the terms =93college=94 and =93university=94,[7] but its reach was broadened in = 1997 and=20 now states in part:

= ; =20 (a) Unless the institution has = been=20 issued a certificate of authority under this subchapter, a person may=20 not:

= ; =20 (1) use the term = =93college,=94=20 =93university,=94 =93seminary,=94 =93school of medicine,=94 =93medical = school,=94 =93health=20 science center,=94 =93school of law,=94 =93law school,=94 or =93law = center=94 in the official=20 name or title of a nonexempt private postsecondary educational = institution;=20 or

= ; =20 (2) describe=20 an institution using a term listed in Subdivision (1) or a term having a = similar=20 meaning.[8]

Section 61.304=20 restricts the designations of educational attainment an institution may = use. In=20 1998, when the events in this case occurred, section 61.304 stated:

= ; =20 A person may not grant or award a degree on behalf of a private = postsecondary=20 educational institution unless the institution has been issued a = certificate of=20 authority to grant the degree by the board in accordance with the = provisions of=20 this subchapter. A person may not represent that credits earned or = granted by=20 that person or institution are applicable for credit toward a degree to = be=20 granted by some other person or institution except under conditions and = in a=20 manner specified and approved by the board. The board is empowered to = specify=20 and regulate the manner, condition, and language used by an institution = or=20 person or agents thereof in making known that the person or institution = holds a=20 certificate of authority and the interpretation of the significance of = such=20 certificate.[9]

Current=20 section 61.302(1) defines =93degree=94 expansively:

= ; =20 =93Degree=94 means any title or designation, mark, abbreviation, = appellation, or=20 series of letters or words, including associate, bachelor=92s, = master=92s, doctor=92s,=20 and their equivalents, which signifies, purports to, or is generally = taken to=20 signify satisfactory completion of the requirements of all or part of a = program=20 of study leading to an associate, bachelor=92s, master=92s, or = doctor=92s degree or=20 its equivalent.[10]

As = section=20 61.301 explains:

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.[11]

&nbs= p;=20 To obtain a certificate of authority,[12] an institution must satisfy = the=20 Coordinating Board that it meets standards the Board has adopted.[13] There are 21 at present.[14] In 1998, the standards were=20 substantively similar but numbered 24.[15] According to the Board, its = standards=20 =93represent generally accepted administrative and academic practices = and=20 principles of accredited institutions of higher education in Texas=94 and = =93are generally=20 set forth by regional and specialized accrediting bodies=94.[16] The standards are lengthy, = detailed,=20 rigorous, and comprehensive, covering every aspect of an institution=92s = operation. Some are quite explicit, like these:

=95 &n= bsp; =20 =93Each faculty member teaching in an academic associate or = baccalaureate level=20 degree program shall have at least a master=92s degree from an = institution=20 accredited by a recognized agency or a regional accrediting agency with = at least=20 18 graduate semester credit hours in the discipline being taught. = Furthermore,=20 at least 25% of course work in an academic associate or baccalaureate = level=20 major shall be taught by faculty members holding doctorates, or other = terminal=20 degrees, in the discipline being taught from institutions accredited by = a=20 recognized agency or a regional accrediting agency. . . . Graduate level = degree=20 programs shall be taught by faculty holding doctorates, or other = terminal=20 degrees, in the discipline being taught from institutions accredited by = a=20 recognized agency or a regional accrediting agency.=94[17]

=95 &n= bsp; =20 =93Each associate or baccalaureate degree program shall contain a = general=20 education component consisting of at least 25% of the total hours offered for the program. This = component=20 shall be drawn from each of the following areas: Humanities and Fine = Arts,=20 Social and Behavioral Sciences, and Natural Sciences and = Mathematics.=94[18]

Other=20 standards leave much to the Coordinating Board=92s discretion to = determine=20 compliance:

=95 &n= bsp; =20 =93The character, education, and experience in higher education of = governing board=20 members, administrators, supervisors, counselors, agents, and other=20 institutional officers shall be such as may reasonably ensure that the = students=20 will receive education consistent with the objectives of the course or = program=20 of study.=94 [19]

=95 &n= bsp; =20 =93There shall be sufficient distinction among the roles and personnel = of the=20 governing board of the institution, the administration, and faculty to = ensure=20 their appropriate separation and independence.=94 [20]

=95 &n= bsp; =20 =93The character, education, and experience in higher education of the = faculty=20 shall be such as may reasonably ensure that the students will receive an = education consistent with the objectives of the course or program of = study.=94[21]

=95 &n= bsp; =20 =93There shall be a sufficient number of full-time teaching faculty = resident and=20 accessible to ensure continuity and stability of the education program, = adequate=20 educational association between students and faculty and among the = faculty=20 members, and adequate opportunity for proper preparation for instruction = and=20 professional growth by faculty members.=94 [22]

=95 &n= bsp; =20 =93The quality, content, and sequence of each course, curriculum, or = program of=20 instruction, training, or study shall be appropriate to the purpose of = the=20 institution and shall be such that the institution may reasonably and = adequately=20 achieve the stated objectives of the course or program.=94[23]

=95 &n= bsp; =20 =93The institution shall have adequate space, equipment, [and] instructional materials to provide = education of=20 good quality.=94 [24]

=95 &n= bsp; =20 =93The institution shall have adequate financial resources and financial = stability=20 to provide education of good quality and to be able to fulfill its = commitments=20 to students.=94 [25]

=95 &n= bsp; =20 =93The institution shall adopt and distribute to all members of the = faculty a=20 statement of academic freedom assuring freedom in teaching, research, = and=20 publication.=94 [26]

A = certificate=20 of authority is valid for two years,[27] and an institution must apply = for=20 renewal 180 days before the certificate expires.[28] A certificate can be renewed = for only=20 eight years, by which time the institution must obtain full = accreditation.[29]

&nbs= p;=20 An institution is exempt from subchapter G if it is fully accredited by = a=20 =93recognized accrediting agency=94 designated by the Coordinating = Board.[30] In 1998, the Board had = designated only=20 three accrediting agencies, two of which were specifically oriented = toward=20 religious institutions.[31] Since then, four others have = been added,=20 none with a religious focus.[32] Although no recognized = accrediting=20 agency=92s standards are included in the record, for Board recognition, = an=20 accrediting agency=92s standards =93must be at least as comprehensive = and rigorous=20 as [the Board=92s standards for a certificate of authority] and be as = rigorously=20 applied.=94 [33] An exempt institution may, and = according=20 to the Board should, obtain a certificate of authorization,[34] which is not to be confused = with a=20 certificate of authority.[35]

&nbs= p;=20 In sum, with a few exceptions, none material to this case, subchapter G = of the=20 Act requires that a private post-secondary institution either have=20 Board-approved accreditation or satisfy Board-adopted standards before = it can=20 describe itself and its students=92 attainments with words commonly used = for those=20 purposes by such institutions. A violation is a Class A misdemeanor,[36] may be investigated and = enjoined by the=20 Attorney General,[37] is punishable by a civil = penalty of=20 $1,000 per day [38] and an administrative penalty = of=20 $1,000-5,000 per offense [39] imposed by the Commissioner of = Higher=20 Education, the Board=92s executive officer,[40] and is a false, misleading, or = deceptive=20 act or practice actionable under the Texas Deceptive Trade = Practices-Consumer=20 Protection Act.[41]

&nbs= p;=20 The parties have stipulated to all the facts.

&nbs= p;=20 Petitioner HEB Ministries, Inc., a church in Fort Worth,[42] operates a school, Tyndale Theological Seminary and Bible Institute, = which was=20 founded in the early 1990s to offer a biblical education in preparation = for=20 ministry in churches and missions. By 1999, its campus consisted of a = library,=20 four or five classrooms, administrative offices, a small bookstore, and = a=20 computer department, and its enrollment was 300-350 students, with over=20 three-fourths in correspondence courses. Tyndale is a=20 =93private postsecondary educational institution=94 as defined by = subchapter G.

&nbs= p;=20 Tyndale=92s 1997-1998 course catalog = stated:

= ; =20 At TYNDALE our focus is upon you =97 the professional minister or = motivated layman=20 who wishes to make a difference for Christ in our world. You are the = most=20 important part of the TYNDALE equation. Our job is to meet your needs = =97 to meet=20 you half-way with quality Bible courses that help you in your ministry=20 endeavor.

The catalog=20 also contained a lengthy =93Doctrinal Statement=94 setting out Tyndale=92s positions on issues of faith.[43] The catalog listed 172 = courses, 162 of=20 which were in religious subjects. Of the other ten, three were in = general=20 education =97 =93Basic English Grammar & Composition=94, =93Read, = Research &=20 Study Basics=94, and =93Ancient World History=94 =97 and seven were in = typing, word=20 processing, and use of the Internet, offered by the =93Department of = Theological=20 and Biblical Research=94. The catalog offered 20 =93diplomas=94, all in = religious=20 subjects.[44]

&nbs= p;=20 Tyndale=92s catalog offered no =93diploma=94 = in any secular=20 subject and no =93degree=94 of any kind, but it characterized programs = of study=20 required for a diploma as equivalent to programs of study required for a = degree=20 at the same level. For example, the catalog referred to its =93Diploma = Of Theological Studies=94 program as a =93bachelor = equivalent=20 program=94 and =93bachelor equivalent course of studies=94, and the = =93Master of Arts=20 Level Diploma=94 in =93Counseling=94 as a =93Masters Level Program=94.[45]

&nbs= p;=20 The course catalog did not state that Tyndale=92s=20 diplomas were the equivalent of college degrees, but neither did it = state that=20 they were not; it was silent on the subject. The catalog stated that = Tyndale and Louisiana Baptist Theological Seminary = were=20 =93going forward with parallel programs [in prophetic studies] and = exchange of=20 credits between the two institutions=94, but did not otherwise say that = Tyndale academic credits could be applied toward = earning=20 degrees.

&nbs= p;=20 In 1998, Tyndale had never been accredited = by an=20 agency recognized by the Coordinating Board and had never obtained a = certificate=20 of authority from the Board. Tyndale never = sought=20 accreditation or a certificate of authority for what it describes as = =93doctrinal=20 reasons=94. In its 1997-1998 course catalog, Tyndale=20 described its position on accreditation as follows:

= ; =20 Many seminaries are on shifting sands. They feel they must impress the = world or=20 the culture with their intellectualism. Thus, some schools are spending = large=20 sums of money on appearance and are no longer focusing on the substance = =97 strong=20 theology, solid Bible courses, practical language exegesis, = etc.

= ; =20 What validates TYNDALE? TYNDALE believes it is affirmed by its Board of=20 Advisors, Board of Governors, the students attending and, the = world-class Guest=20 Faculty who give our students the best of = academics and=20 the greatest training in the spiritual message of the Scriptures. But = again,=20 many schools seek RECOGNITION and AFFIRMATION from the state, from = secular=20 associations or professional groups that really have no business = meddling in=20 biblical matters.

= ; =20 The approach of many seminaries and Bible schools is obsolete and = antiquated.=20 They are still trying to be, as they call it, =93traditional=94 schools. = But mainly,=20 they simply try to keep up with the Joneses. They attempt to look and = act like=20 secular universities. But in reality, a school like = TYNDALE,=20 and other schools with our convictions, are the ones that are=20 traditional, not the other way around.

= ; =20 For example, in the 1960s, most Christian schools were not accredited, = nor did=20 the best want to be. They were satisfied with serving the Lord by being = complete=20 and whole within their framework and calling. As well, a student could = get the=20 best education at these institutions and know he had not been = compromised with=20 the culture. But in the 1970s, a push was on for state approval and=20 accreditation. =93We want state and federal government approval. We want = the world=20 to like us?=94 [sic] Did any of this have = anything to do=20 with the quality or teaching message of those schools? It did not! When = one of=20 the big seminaries became accredited in the 1970s, almost all=20 of the older faculty and all of the graduates testify that the = school=20 went down hill =97 not in a certain secular quality manner, but in its = message and=20 commitment to truth and the Gospel.

= ; =20 One of the largest Christian=20 Universities in = America has=20 said, =93We will not become accredited!=94 That school today is highly = respected and=20 other schools want their graduates. Accreditation or lack of it has not = had=20 anything to do with the school=92s quality or mission.

&nbs= p;=20 At commencement exercises on June 26, 1998, Tyndale=20 recognized graduates with 34 awards, listed in the program with titles = as=20 follows:

=95 &n= bsp; =20 =93Certificate of Biblical Studies (Cert. BS)=94 =97 two;

=95 &n= bsp; =20 =93Diploma of Basic Biblical Studies (Dip.=20 BBS)=94 =97 three;

=95 &n= bsp; =20 =93Associate of Biblical Studies (ABS)=94 =97 one;

=95 &n= bsp; =20 =93Diploma of Advanced Biblical Studies (Dip. ABS)=94 =97 one;

=95 &n= bsp; =20 =93Bachelor Level Diploma in Biblical Studies (BBS)=94 =97 = two;

=95 &n= bsp; =20 =93Bachelor Level Diploma in Theological Studies = (Dip. Th.S.)=94 =97 six;

=95 &n= bsp; =20 =93Diploma of Christian Studies (DCS)=94 =97 two;

=95 &n= bsp; =20 =93Master of Arts (MA)=94 =97 nine;

=95 &n= bsp; =20 =93Master of Theology (Th.M.) =97 = two;

=95 &n= bsp; =20 =93Doctor of Ministries (D.Min)=94 =97 = one;

=95 &n= bsp; =20 =93Doctor of Theology (Th.D)=94 =97 = two;

=95 &n= bsp; =20 =93Doctor of Philosophy (Ph.D)=94 =97 = three.

The record=20 contains a copy of only one of the award certificates. It read:

Tyndale Theological Seminary

Fort=20 Worth, Texas

To Whom it may = concern

[recipient=92s = name]

Has completed satisfactorily the course = of

Theological studies offered by

the=20 faculty of this institution and is entitled

to the=20 following diploma: The aequus

Master of Arts Level Diploma

And the same is hereby conferred by the authority of = the=20 board

and=20 faculty as recommended by the president.

June 26, 1998

&nbs= p;=20 In conferring these awards, Tyndale did not = use the=20 word =93degree=94. Nevertheless, the Commissioner of Higher Education = sent Tyndale a letter dated July 22, 1998, which = stated:

= ; =20 As you know, the Texas Education Code, Chapter 61, Subchapter G, = requires an=20 institution to have a certificate of authority to grant degrees, credits = applicable to degrees, or to use specific academic terminology. I have=20 determined that Tyndale Theological Seminary = &=20 Biblical Institute is violating this statute. Under Section 61.316, the=20 Commissioner must assess penalties for violations. Those penalties may = range=20 from $1,000 to $3,000 for use of a protected term in the institution=92s = name and=20 from $1,000 to $5,000 for awarding or offering to award degrees. Each = degree=20 awarded or offered constitutes a separate offense.

= ; =20 From the evidence we possess, I conclude the following:

=95 &n= bsp; =20 Tyndale meets the definition of a private=20 postsecondary institution in Texas as found in =A7 = 61.302(2);

=95 &n= bsp; =20 Tyndale was informed that the law requires = it must=20 hold a certificate of authority from the Coordinating Board to grant = degrees,=20 grant credits applicable to degrees, or use protected terminology in a = letter=20 from the Coordinating Board dated September 16, 1991;

=95 &n= bsp; =20 On or about June 26, 1998, Tyndale awarded = six=20 undergraduate certificates (consisting of courses alleged to be = applicable to=20 degrees), one associate degree, eight bachelor=92s degrees, two diplomas = of=20 Christian Studies (accepted as a baccalaureate equivalent for admission = to your=20 master=92s programs), eleven master=92s degrees, and six doctoral = degrees for a=20 total of 34 degrees; and

=95 &n= bsp; =20 Tyndale is using the protected term = =93seminary=94 in its=20 name.

Therefore, I am assessing an administrative penalty = of=20 $173,000, consisting of 34 violations of granting a degree without = authority at=20 $5,000 each and one violation of using a protected term at = $3,000.

= ; =20 You have twenty (20) days from the date of receipt of this letter to = either pay=20 the penalty or appeal the decision. . . .

= ; =20 Also, you must immediately cease your actions in violation of state law. = You=20 must contact us within twenty days of the receipt of this letter with = your plans=20 to correct your actions. At minimum those plans must include the = following: you=20 must (1) cease using the term =93seminary,=94 or any other protected = term, in the=20 name of your institution; (2) cease awarding or offering to award = degrees; (3)=20 cease offering credit towards degrees; (4) inform your graduates, = students, and=20 potential students by letter that you have no degree granting authority; = and (5)=20 offer by letter full refunds to all graduates and students. The content = of the=20 letter informing your students of your status and the offer of refunds = must be=20 submitted to the Coordinating Board for approval prior to its = distribution.=20 Failure to contact us with your plans to correct your actions will = result in our=20 referring this matter to the Office of the Attorney General for = injunctive and=20 any other relief allowed by law.

&nbs= p;=20 Tyndale did not appeal the Board=92s = decision.[46] Instead, HEB Ministries sued = the=20 Coordinating Board, the Commissioner, and the Attorney General for a = declaratory=20 judgment that sections 61.304 [47] and 61.313(a), as applied to a = school=20 like Tyndale, violate the Establishment = Clause and=20 Free Exercise Clause of the First Amendment to the United States = Constitution as=20 well as article I, section 6 of the Texas Constitution.[48] HEB Ministries also sought = attorney=20 fees. The Coordinating Board and the Commissioner counterclaimed for = collection=20 of the previously assessed $173,000 administrative penalty, an = injunction=20 prohibiting HEB Ministries from engaging in the conduct for which it had = been=20 sanctioned, and attorney fees.

&nbs= p;=20 At some point, two other institutions intervened as plaintiffs. One, = Southern=20 Bible Institute, describes itself as =93a post-secondary religious = educational=20 institution in Dallas,=20 Texas . . . founded for = the purpose=20 of preparing disadvantaged African-American men for the gospel = ministry.=94 The=20 other, Hispanic Bible Institute, states that it is =93a post-secondary = religious=20 educational institution in San=20 Antonio, Texas=94, and=20 that =93[t]he educational offerings of this ministry are theology, = church and=20 pastoral ministry, and general studies.=94 The record contains no other=20 information about the intervenors.

&nbs= p;=20 Both sides moved for summary judgment. In their motion, the plaintiffs=20 (including the intervenors) argued, in = addition to the=20 allegations in HEB Ministries=92 petition, that sections 61.304 and = 61.313 also=20 violate the First Amendment=92s Free Speech Clause[49] and article I, section 8 of = the Texas=20 Constitution.[50] The defendants did not object = to this=20 additional claim and addressed it in their response. The trial court = held that=20 section 61.313=92s regulation of the word =93seminary=94 violates the = First Amendment=20 and article I, sections 6 and 8 of the Texas Constitution. In all other=20 respects, the trial court granted summary judgment for the defendants. = It=20 ordered HEB Ministries to pay the State $170,000, the penalty assessed = for=20 granting 34 degrees, and ordered the plaintiffs to pay $34,781 in = attorney fees.=20 The court also enjoined HEB Ministries from awarding degrees, as defined = in=20 Subchapter G, or representing that Tyndale=92s=20 educational credits would be applied toward a degree at another = institution,=20 until it obtained a certificate of authority from the Coordinating = Board.

&nbs= p;=20 The court of appeals held that neither 61.304 nor 61.313 violates the First Amendment or article I, sections = 6 and 8=20 of the Texas Constitution. Thus, it reinstated the $3,000 administrative = penalty=20 against HEB Ministries for Tyndale=92s use = of=20 =93seminary=94, and upheld the $170,000 administrative penalty for = granting degrees.=20 The court remanded the case for entry of a permanent injunction = consistent with=20 its opinion.[51]

&nbs= p;=20 We granted the plaintiffs=92 petition for review.[52] Petitioners, to whom we shall = refer=20 collectively as =93HEB Ministries=94, contend that the Establishment and = Free=20 Exercise Clauses of the First Amendment and corresponding state = constitutional=20 provisions preclude the State from requiring a post-secondary school = with a=20 religious mission to meet specified standards for its operation and = curriculum=20 before it can call itself a =93seminary=94 or use words like = =93associate=94,=20 =93bachelor=92s=94, =93master=92s=94, and =93doctor=92s=94 to mark = student attainment in religious=20 education and training. HEB Ministries does not challenge the State=92s = authority=20 to impose such standards on secular institutions and on religious = institutions=20 offering a secular education. Nor does HEB Ministries contend that the = State=20 cannot regulate use of the word =93degree=94. It contends only that the = State cannot=20 deny the use of such higher education terminology to religious schools = that do=20 not meet its standards. Respondents, the Coordinating Board and the = Commissioner=20 (collectively =93the Coordinating Board=94),[53] insist that sections 61.304 = and=20 61.313(a) are constitutionally sound because they are part of a neutral = law that=20 is secular in purpose and generally applicable to all institutions of = higher=20 education, and that only incidentally impacts institutions offering = religious=20 instruction. The Coordinating Board argues that use of the statutorily=20 restricted words is unimportant to the religious mission of a school = like Tyndale when there are other words it can use to = describe=20 itself and its students=92 attainment.

&nbs= p;=20 HEB Ministries also contends that sections 61.304 and 61.313(a) violate = the Free=20 Speech Clause of the First Amendment and corresponding state = constitutional=20 provisions. The separate opinions find it necessary to reach this issue, = but we=20 do not.

&nbs= p;=20 The Establishment Clause prohibits any =93law respecting an = establishment of=20 religion=94.[54] Correspondingly, article I, = section 6 of=20 the Texas Constitution states that =93no preference shall ever be given = by law to=20 any religious society=94.[55] We have referred to this = provision and=20 article I, section 7 as =93Texas=92 equivalent of the = Establishment=20 Clause.=94 [56] The parties do not argue that = there is=20 any difference in the application of these federal and state = constitutional=20 provisions to this case, and we will assume for present purposes that = they are=20 coextensive.[57]

&nbs= p;=20 Fundamentally, =93[t]he =91establishment of = religion=92=20 clause of the First Amendment means at least this: Neither a state nor = the=20 Federal Government can set up a church. Neither can pass laws which aid = one=20 religion, aid all religions, or prefer one religion over another.=94[58] Since the government cannot = determine=20 what a church should be, it cannot determine the qualifications a cleric = should=20 have or whether a particular person has them.[59] Likewise, the government = cannot set=20 standards for religious education or training.[60] As the United States Supreme = Court said=20 long ago in Watson v. Jones:

The law knows no heresy, and is committed to the = support of no=20 dogma, the establishment of no sect. The right to organize voluntary = religious=20 associations to assist in the expression and dissemination of any = religious=20 doctrine . . . is unquestioned.[61]

That said, the=20 Supreme Court has also written:

= ; =20 A system of government that makes itself felt = as=20 pervasively as ours could hardly be expected never to cross paths with = the=20 church. In fact, our State and Federal Governments impose certain = burdens upon,=20 and impart certain benefits to, virtually all our activities, and = religious=20 activity is not an exception. The Court has enforced a=20 scrupulous neutrality by the State, as among religions, and also = as=20 between religious and other activities, but a hermetic separation of the = two is=20 an impossibility it has never required. . . .

= ; =20 Neutrality is what is required. The State must confine itself to secular = objectives, and neither advance nor impede religious activity.[62]

&nbs= p;=20 The Coordinating Board asserts that subchapter G meets this requirement = of=20 neutrality. Though the statute regulates religious education, it does = so, the=20 Board argues, only incidentally in pursuit of its secular objective of=20 regulating all post-secondary educational institutions generally, = irrespective=20 of whether their programs are secular or religious. In the sense that = subchapter=20 G applies to institutions across the board, we agree that it is neutral; = that=20 is, it does not single out religious programs for special treatment. = But the fact that subchapter G burdens all private = post-secondary=20 institutions does not lessen its significant, peculiar impact on = religious=20 institutions offering religious courses of study. Subchapter G = requires a=20 clear, public, instantly identifiable differentiation between a = religious=20 education that meets the Coordinating Board=92s standards and one that = does not:=20 only an institution that meets those standards may call itself a = seminary and=20 its graduates associates, bachelors, masters, = doctors,=20 and the like. But setting standards for a religious education is a = religious=20 exercise for which the State lacks not only authority but competence,[63] and those deficits are not = erased simply=20 because the State concurrently undertakes to do what it is able = to do =97=20 set standards for secular educational programs. The State cannot avoid = the=20 constitutional impediments to setting substantive standards for = religious=20 education by making the standards applicable to all educational = institutions,=20 secular and religious.[64]

&nbs= p;=20 Subchapter G expresses a preference for one manner of religious = education over=20 another. The religious school that chooses to educate in the manner of = secular=20 schools may use education terminology with the State=92s approval. Other = religious=20 schools cannot. The Coordinating Board=92s standards we have set out = above,=20 adopted as authorized by subchapter G, require =93academic freedom=94 = and faculty=20 =93independence=94 inconsistent with a doctrinal statement like Tyndale=92s that is at the core of its mission. = Those=20 standards set minimum faculty qualifications and require that one-fourth = of the=20 hours required for graduation from a baccalaureate program be in = each of=20 three groups: the humanities and fine arts, the social and behavioral = sciences,=20 and the natural sciences and mathematics. The standards also give the = Board wide=20 discretion to determine the adequacy of an institution=92s operations = and=20 curriculum. An accrediting agency=92s standards must be at least as = comprehensive=20 and rigorous for the agency to receive recognition by the Board. Such = standards,=20 prescribing as they do a detailed model for any institution offering=20 post-secondary education, can hardly be said to impact religious = institutions=20 offering religious instruction incidentally. Subchapter G does not = target=20 religious institutions, but it directly and substantively impacts them = by=20 impeding their ability to describe themselves or their students=92 = religious=20 educational attainment.

&nbs= p;=20 HEB Ministries does not argue that the Coordinating Board=92s standards = offend=20 constitutional protections when applied to secular educational programs, = even if=20 provided by religious institutions, and we need not consider that issue. = HEB=20 Ministries argues only that it is constitutionally impermissible for the = State=20 to require an indication of its preference for one manner of religious = education=20 over another. HEB Ministries=92 course offerings are almost exclusively = in=20 religious subjects =97 162 out of 172 =97 and the ten general education = courses=20 available are offered only to supplement religious training. HEB = Ministries=20 offers no secular program of study. Its academic awards are all in = religious=20 studies, and the only certificate in our record clearly denotes this by = stating=20 that it is given for satisfactory completion of a =93course of = Theological=20 studies=94. It is one thing for the State to require that English majors = in a=20 baccalaureate program take science or math courses, that they be taught = by=20 professors with master=92s degrees from accredited institutions, and = that=20 professors have the freedom to teach that the works sometimes attributed = to=20 Shakespeare were really written by Edward de Vere,=20 Christopher Marlowe, Francis Bacon, or Queen Elizabeth I. It is quite = another=20 for the State to require that a religious institution=92s = baccalaureate-level=20 education in religion include psychology courses, or that preaching or=20 evangelism or missions be taught only by professors with master=92s = degrees=20 instead of practitioners from the field, or that a school=92s faculty = have the=20 freedom to teach that the Bible was not divinely inspired, contrary to = the=20 school=92s tenets of faith. As the United States Supreme Court has = observed,

training for religious professions and training for secular=20 professions are not fungible. Training someone to lead a congregation is = an=20 essentially religious endeavor. Indeed, majoring in devotional theology = is akin=20 to a religious calling as well as an academic pursuit.[65]

&nbs= p;=20 The Coordinating Board acknowledges that the State cannot control = religious=20 education and training and insists that subchapter G does not do so. = Compliance=20 is voluntary. Any institution is free to choose to operate without a = certificate=20 of authority from the Coordinating Board or accreditation from a = recognized=20 agency as long as it does not use restricted terminology. But subchapter = G=20 cannot avoid the Establishment Clause merely because it allows = institutions a=20 degree of choice.[66] The issue is whether it = operates to=20 prefer one kind of religious instruction over another. By restricting = the=20 terminology a religious institution can use, the State signals its = approval or=20 disapproval of the institution=92s operation and curriculum as vividly = as if it=20 hung the state seal on the institution=92s front door. A =93seminary=94 = teaches=20 religion the way the State of Texas approves. A program or award = in=20 religious studies described as being at an associate, bachelor=92s, master=92s, or doctor=92s level, or = anything=20 equivalent, has the State=92s approval. All others do not.

&nbs= p;=20 As Tyndale explained in its course catalog, = views vary=20 on how post-secondary religious instruction should be provided. For = some, the=20 secular education model is preferred, with programs structured like = those of any=20 liberal arts school, and accreditation, though expensive, is affordable. = For=20 others, religious instruction is more insular, steeped in the doctrine = and=20 experience of a specific faith, and limited resources practically = preclude=20 obtaining accreditation.[67] The Coordinating Board admits = that=20 subchapter G takes sides in this debate, but insists that subchapter G = does so=20 only incidentally as part of its overall regulation of private = post-secondary=20 education. We disagree that the State=92s expression of a preference for = how=20 religion should be taught can fairly be characterized as incidental. = =93The=20 clearest command of the Establishment Clause is that one religious = denomination=20 cannot be officially preferred over another.=94 [68] The Texas Constitution = expressly=20 prohibits such a preference. By limiting the educational terminology a = religious=20 institution may use without the approval of the Coordinating Board, = subchapter G=20 prefers one course of religious instruction over another.

&nbs= p;=20 The Coordinating Board argues that subchapter G=92s standards are no = different=20 than sanitation standards a state might set for churches butchering meat = to=20 religious specifications. A state in such circumstances need not = interfere with=20 religious beliefs and practices to ensure that food is minimally safe = for human=20 consumption, and it cannot interfere in religious requirements when = health is no=20 longer an issue. Thus, government standards for determining that food is = not=20 only safe but kosher =97 a religious requirement only partly concerned = with health=20 =97 would involve an impermissible state preference among religious = views.[69] As one court has written, a = law that=20 allows a state agency to determine whether food is kosher impermissibly = =93take[s] sides in a religious matter,=94 even if the = purpose of=20 the law is to prevent fraud in the marketing of food.[70] Subchapter G helps prevent = harm to=20 students by requiring that educational institutions be financially = responsible[71] and candid about their = operations.[72] But the State=92s legitimate = concern for=20 student safety does not authorize it to take sides in the religious = debate over=20 how religion should be taught by setting substantive standards for = religious=20 educational curriculum and process. We have upheld regulations = protecting the=20 health, safety, and well-being of students in daycare facilities.[73] Subchapter G is much = different.

&nbs= p;=20 We think sections 61.304 and 61.313(a) clearly effectuate a state = preference for=20 one model of religious education over others, a preference that the=20 Establishment Clause simply does not permit. We are mindful, however, = that

[t]he Supreme Court has rejected any absolute = approach in=20 applying the Establishment Clause. At times it has relied on the = principles=20 enunciated in Lemon v. Kurtzman[[74]] . . . to guide it through = this=20 =93extraordinarily sensitive area of constitutional law.=94 Under = Lemon, a=20 government practice is constitutional if: (1) it has a secular purpose; = (2) its=20 principal or primary effect neither advances nor inhibits religion; and = (3) it=20 does not excessively entangle the government with religion.[75]