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]

In = our view,=20 the statutory provisions at issue do not pass this test.

&nbs= p;=20 There is nothing to suggest that either the Legislature in enacting = subchapter G=20 or the Coordinating Board in enforcing it intended any purpose other = than the=20 secular one of maintaining high standards for post-secondary education = to=20 protect legitimate institutions and their graduates and prevent public = deception=20 by =93diploma mills=94, even though the distinct impact on religious = instruction is=20 apparent. Nor can we say that the principal or primary effect of=20 subchapter G is to advance or inhibit religion, although as we have = explained at=20 length, a substantial effect of the statute is to indicate the State=92s = preference for post-secondary religious instruction that meets the = Board=92s=20 standards. But it is fair to say that a principal or primary = effect is to=20 advance religious education the State approves and inhibit what it does = not. We=20 think it beyond serious dispute that the statute clearly and excessively = entangles the government in matters of religious instruction. The = Board=92s=20 standards, and those of recognized accrediting agencies, cannot be = applied=20 without a thorough, detailed, and repeated examination of an = institution=92s=20 operations and curriculum. Without such an examination, the Board could = not=20 determine, as it says it must, whether, for example, =93[t]he character, = education, and experience in higher education of the faculty shall be = such as=20 may reasonably ensure that the students will receive an education = consistent=20 with the objectives of the course or program of study.=94[76] This is but one of more than a = score of=20 standards the institution must meet to obtain approval and access to = restricted=20 terminology. And it must demonstrate its compliance every two years = until it=20 obtains full accreditation from a recognized agency, which, as we have = noted, is=20 considered by the Coordinating Board to be at least as rigorous an = exercise as=20 compliance with the Board=92s standards.

&nbs= p;=20 It is true, as the Coordinating Board argues, = that an=20 institution may choose not to burden itself with state standards, but = that=20 option does not disentangle the State from religious matters. The = choice, which=20 every institution must make, determines whether the institution may use=20 restricted terminology, indicating that its programs have state = approval. It is=20 this expression of approval or lack of approval of religious instruction = that=20 entangles the State in religion.

&nbs= p;=20 Several Justices of the Supreme Court have criticized the Lemon = test,[77] and while we are not at = liberty to take=20 criticism for rejection, from our vantage point, the Court seems over = time to=20 have become =93particularly attuned to whether the challenged government = practice=20 purposefully or effectively =91endorses=92 religion, an inquiry courts = generally=20 consider a component of the Lemon test=92s first and second = parts.=94[78] As we have explained, = subchapter G=20 clearly expresses the State=92s endorsement of particular religious = education by=20 allowing institutions that meet its standards to use restricted = terminology. A=20 =93seminary=94 is a state-endorsed school, and a =93bachelor=92s=94 = diploma a=20 state-endorsed award. The State=92s imprimatur is unmistakable.

&nbs= p;=20 We are aware of only one other court that has considered whether state=20 regulation of post-secondary religious education conflicts with the=20 Establishment Clause. In New Jersey State Board of Higher Education = v.=20 Shelton College, the New Jersey Supreme Court upheld that state=92s = regulation=20 against an Establishment Clause challenge.[79] But the school in that case, = Shelton = College, offered secular as well = as=20 religious programs, including elementary education, secondary education, = English, history, business management, music education, and natural = science.[80] And the court=92s reasoning = illustrates=20 the significant differences between the level of regulation involved in = that=20 case and this one:

= ; =20 The Establishment Clause permits minor, unobtrusive state supervision of = religiously oriented schools. Only excessive entanglement is proscribed. = None of=20 the education statutes or regulations here in question mandates = =93active=20 involvement of the sovereign in religious activity.=94 None authorizes = state=20 regulation of the content of an educational program. Nor does the = regulatory scheme on its face require =93comprehensive, discriminating = and=20 continuing state surveillance.=94 Although the regulations in this area = appear to=20 be burdensome, especially as applied to a college of approximately 30 = students,=20 they explicitly call for flexibility in their administration so as to=20 accommodate various institutions with diverse educational goals. Because = Shelton=20 College declined = even to=20 complete the licensing process, the allegation of excessive entanglement = rests=20 on speculation about the manner in which these statutes and regulations = might be=20 applied. Although one could imagine an unconstitutional application of = this=20 regulatory scheme, we are confident that the Board of Higher Education = will=20 pursue the least restrictive means to achieve the State=92s overriding = concerns.=20 Of course, should the Board exercise its discretion in a manner that=20 unnecessarily intrudes into Shelton=92s religious affairs, the = college would=20 then be free to challenge the constitutionality of such action. At this=20 juncture, however, we need not invalidate these statutes merely because = they may=20 be amenable to an unconstitutional application.[81]

Subchapter G=92s=20 certification process is certainly not minor or unobtrusive; it is, the=20 Coordinating Board insists, =93comprehensive and rigorous=94.[82] The statute prohibits an = institution=20 from using common terminology if the sovereign is not actively involved = in the=20 institution=92s religious education. State examination extends to = content and=20 presentation. There is no special provision for religious instruction, = and not=20 only is the Board given no discretion to treat such education = differently than=20 secular education, it has given no indication that it would be willing = to do so=20 if it could.[83] We need not speculate what = process Tyndale would have been required to follow to = obtain=20 certification; the demands of the Board=92s standards are perfectly = clear. These=20 are not the circumstances described in Shelton College, and had they been, = we think=20 from what the court said there, it would have reached the same result we = do in=20 the present case.

&nbs= p;=20 =93The purpose of the Establishment Clause is to protect against state=20 =91sponsorship . . . and active involvement=92 in religious = activity.=94[84] Here, the religious activity = is offering=20 religious instruction and recognizing attainment with certificates = clearly=20 reflecting that such instruction is religious. We do not address what=20 restrictions may be imposed on religious institutions that offer a = secular=20 education or award diplomas or other certificates for courses of study = not=20 clearly denominated as religious. It is hard to imagine a more active=20 involvement in religious training than by determining whether it meets = the=20 comprehensive standards set by the Coordinating Board, and equally hard = to=20 imagine a more direct state sponsorship of religious education than by=20 indicating in every institution=92s name and on every academic award = whether the=20 State approves the programs of study. We therefore hold that sections = 61.304 and=20 61.313(a) violate the Establishment Clause and article I, section 6 of = the Texas=20 Constitution as applied to a religious institution=92s programs of = religious=20 instruction.

III

&nbs= p;=20 The First Amendment also forbids any =93law . . .=20 prohibiting the free exercise=94 of religion.[85] Likewise, article I, section 6 = of the=20 Texas Constitution states:

= ; =20 All men have a natural and indefeasible right to worship Almighty God = according=20 to the dictates of their own consciences. No man shall be compelled to = attend,=20 erect or support any place of worship, or to maintain any ministry = against his=20 consent. No human authority ought, in any case whatever, to control or = interfere=20 with the rights of conscience in matters of religion . . . .[86]

We = have=20 treated the state and federal Free Exercise guarantees as coextensive = absent=20 parties=92 argument to the contrary,[87] and we do so again here. We = are well=20 aware of scholarly commentary criticizing the United States Supreme = Court=92s=20 recent Free Exercise decisions,[88] but we do not find it = necessary to=20 discuss those issues in this case.

&nbs= p;=20 HEB Ministries contends, as we have said, that subchapter G violates its = Free=20 Exercise rights by requiring that it either comply with state standards, = and=20 thereby compromise its religious training mission, or forego the use of=20 restricted terms, including =93seminary=94 and common program-level = designations for=20 its diplomas. The Coordinating Board asserts that subchapter G does not = violate=20 the Free Exercise Clause because it is a neutral law of general = applicability,=20 or if not, then because the State has a compelling interest in = regulating=20 post-secondary schools. The Board stresses that compliance with = subchapter G is=20 voluntary and that other terms are available to schools that do not = comply.

&nbs= p;=20 This dispute centers on whether and how to apply the = United=20 States Supreme Court=92s decision in Employment Division v. = Smith.[89] In Smith, two = Native = American Church members who used peyote = for=20 sacramental purposes were fired and then denied unemployment benefits = because=20 their conduct violated state drug laws.[90] They complained that the = criminal law=20 thus infringed on their Free Exercise rights. The Supreme Court = disagreed,=20 noting that it had =93consistently held that the right of free exercise = does not=20 relieve an individual of the obligation to comply with a valid and = neutral law=20 of general applicability on the ground that the law proscribes (or = prescribes)=20 conduct that his religion prescribes (or proscribes).=94[91] The only exceptions, it = stated, had

involved not the Free Exercise Clause alone, but the Free = Exercise=20 Clause in conjunction with other constitutional protections, such as = freedom of=20 speech . . . . And it is easy to envision a case in which a challenge on = freedom=20 of association grounds would likewise be reinforced by Free Exercise = Clause=20 concerns. . . .

= ; =20 The present case does not present such a hybrid situation, but a free = exercise=20 claim unconnected with any communicative activity . . . . Respondents = urge us to=20 hold, quite simply, that when otherwise prohibitable=20 conduct is accompanied by religious convictions, not only the = convictions but=20 the conduct itself must be free from governmental regulation. We have = never held=20 that, and decline to do so now. There being no contention that = Oregon=92s = drug law=20 represents an attempt to regulate religious beliefs [or] the = communication of=20 religious beliefs, . . . the rule to which we = have=20 adhered . . . plainly controls.[92]

The Court=20 specifically noted that the case did not involve =93the communication of = religious=20 beliefs=94 or =93any communicative activity=94. The fact that the use of = peyote was=20 prohibited by a general criminal law was =93critical=94.[93] In that situation, the state = could not=20 be held to showing a compelling interest to justify the law:

The government=92s ability to enforce generally = applicable=20 prohibitions of socially harmful conduct, like its ability to carry out = other=20 aspects of public policy, cannot depend on measuring the effects of a=20 governmental action on a religious objector=92s spiritual = development.[94]

&nbs= p;=20 Three years later, the Supreme Court expounded on Smith=92s = neutrality and=20 general applicability requirements in Church of the Lukumi Babalu Aye, = Inc. v. City of=20 Hialeah.[95] There, a church of the = Santeria religion=20 challenged city ordinances passed to prohibit it from sacrificing = animals as=20 part of its religious ritual.[96] The requirement that a law be = neutral=20 toward religion, the Court said, is basic: =93At a minimum, the = protections of the=20 Free Exercise Clause pertain if the law at issue discriminates against = some or=20 all religious beliefs or regulates or prohibits conduct because it is = undertaken=20 for religious reasons.=94 [97] Non-neutrality, the Court = said, was=20 indicated but not established by the ordinances=92 use of the words = =93sacrifice=94=20 and =93ritual=94 because the words, though religious in origin, also = have secular=20 meanings.[98] But even if a law is neutral = on its=20 face, if its object =93is to infringe upon or restrict practices because = of their=20 religious motivation, the law is not neutral=94.[99] The Court readily found that=20 =93suppression of the central element of the Santeria worship service = was the=20 object of the ordinances.=94 [100] The requirement of general=20 applicability, the Court explained, was based on =93[t]he principle that = government, in pursuit of legitimate interests, cannot in a selective = manner=20 impose burdens only on conduct motivated by religious belief.=94[101] The Court deemed that = principle=20 =93essential to the protection of the rights guaranteed by the Free = Exercise=20 Clause.=94 [102] Clearly, the Court found, the = ordinances =93pursue[d] the city=92s governmental interests only against = conduct=20 motivated by religious belief.=94 [103] Having determined that the = ordinances=20 were neither neutral nor generally applicable, the Court concluded:

= ; =20 A law burdening religious practice that is not = neutral or not=20 of general application must undergo the most rigorous of = scrutiny. To=20 satisfy the commands of the First Amendment, a law restrictive of = religious=20 practice must advance interests of the highest order and must be = narrowly=20 tailored in pursuit of those interests. The compelling interest standard = that we=20 apply once a law fails to meet the Smith requirements is not = watered down=20 but really means what it says. A law that targets religious conduct for=20 distinctive treatment or advances legitimate governmental interests only = against=20 conduct with a religious motivation will survive strict scrutiny only in = rare=20 cases. It follows from what we have already said that these ordinances = cannot=20 withstand this scrutiny.[104]

Concurring=20 separately, Justice Scalia, who wrote for = the Court in=20 Smith, explained further:

= ; =20 The terms =93neutrality=94 and =93general applicability=94 are not to be = found within=20 the First Amendment itself, of course, but are used in [Smith] = and=20 earlier cases to describe those characteristics which cause a law that = prohibits=20 an activity a particular individual wishes to engage in for religious = reasons=20 nonetheless not to constitute a =93law . . . prohibiting the free = exercise=94 of=20 religion within the meaning of the First Amendment. In my view, the = defect of=20 lack of neutrality applies primarily to those laws that by their = terms=20 impose disabilities on the basis of religion (e.g., a law = excluding=20 members of a certain sect from public benefits); whereas the defect of = lack of=20 general applicability applies primarily to those laws which, though = neutral in=20 their terms, through their design, construction, or enforcement target = the=20 practices of a particular religion for discriminatory = treatment.[105]

&nbs= p;=20 Justice Souter also concurred separately, = expressing=20 his misgivings over Smith, decided before he arrived at the = Supreme=20 Court. =93[T]he noncontroversial = principle,=94 he said,=20 =93expressed in Smith though established long before, [is] that = the Free=20 Exercise Clause is offended when prohibiting religious exercise results = from a=20 law that is not neutral or generally applicable.=94[106] But as he read Smith, = he said,=20 its significance =93is not only in its statement that the Free Exercise = Clause=20 requires no more than =91neutrality=92 and =91general = applicability,=92 but also=20 in its adoption of a particular, narrow conception of free-exercise=20 neutrality.=94 [107] Justice Souter continued:

our common notion of neutrality is broad enough to = cover not=20 merely what might be called formal neutrality, which as a free-exercise=20 requirement would only bar laws with an object to discriminate against = religion,=20 but also what might be called substantive neutrality, which, in addition = to=20 demanding a secular object, would generally require government to = accommodate=20 religious differences by exempting religious practices from formally = neutral=20 laws. If the Free Exercise Clause secures only protection against = deliberate=20 discrimination, a formal requirement will exhaust the Clause's = neutrality=20 command; if the Free Exercise Clause, rather, safeguards a right to = engage in=20 religious activity free from unnecessary governmental interference, the = Clause=20 requires substantive, as well as formal, neutrality.[108]

To = illustrate=20 his concern, Justice Souter suggested:

A secular law, applicable to all, that prohibits = consumption=20 of alcohol, for example, will affect members of religions that require = the use=20 of wine differently from members of other religions and nonbelievers,=20 disproportionately burdening the practice of, say, Catholicism or = Judaism.=20 Without an exemption for sacramental wine, Prohibition may fail the test = of=20 religion neutrality.[109]

=93The=20 prohibition law in place earlier this century,=94 he noted, =93did in = fact exempt=20 =91wine for sacramental purposes.=92=94 [110] Free Exercise protections, he = concluded, extend beyond what he took to be the rule in = Smith:

Rather, we have said, =93[o]ur cases = have=20 established that =91[t]he free exercise inquiry asks whether government = has placed=20 a substantial burden on the observation of a central religious belief or = practice and, if so, whether a compelling governmental interest = justifies the=20 burden.=92=94 [111]

Neither the=20 Court nor Justice Scalia responded to = Justice Souter=92s concerns.

&nbs= p;=20 Lukumi was an easy case =97 the Court = was=20 unanimous on the result =97 because the clear genesis and purpose of the = ordinances was to restrict the church=92s sacramental animal sacrifices. = As the=20 Court summarized the case, =93the laws in question were enacted by = officials who=20 did not understand, failed to perceive, or chose to ignore the fact that = their=20 official actions violated the Nation=92s essential commitment to = religious=20 freedom.=94 [112] Though Smith also = involved a law=20 restricting a church=92s sacramental practice, its purpose was to = prevent drug=20 abuse generally and its enactment was completely unrelated to the = church=92s=20 practice. As Justice Blackmun observed in = Lukumi, the case would have been much = harder if the=20 church had been requesting =93an exemption from a generally applicable = anticruelty=20 law.=94 [113] That hypothetical and Justice = Souter=92s illustrate the difficulties in applying = the rule in=20 Smith.

&nbs= p;=20 HEB Ministries and amici curiae[114] argue the rule does not apply = in this=20 case because subchapter G directly interferes with a religious group=92s = education=20 and training of its ministers, activities that are specifically = protected by the=20 First Amendment. In support of this argument, amici=20 cite a Supreme Court decision prior to Smith that prohibited a = court from=20 deciding whether a bishop deposed by his church should be reinstated[115] and state and federal = decisions=20 prohibiting suits against churches for employment discrimination.[116] But these cases address = government=20 interference in selection of the clergy, not in education and training.=20 Subchapter G only obliquely affects religious groups=92 selection of = their clergy.=20 It may influence students=92 choices in seeking a religious course of = study, but=20 it does not prohibit a group from calling a minister who does not hold a = =93degree=94 from a =93seminary=94 or otherwise limit a group=92s = freedom to select=20 whomever it chooses. While subchapter G=92s impact on religious = education is=20 direct and undeniable, the authorities cited shed little light on = whether it=20 infringes on Free Exercise rights. Assuming that government regulation = of clergy=20 selection is prohibited apart from Smith, which seems a safe = assumption=20 even though Smith is silent on the subject, we do not think = subchapter G=20 can be so characterized. And though, as we have noted above, the = government=20 cannot regulate religious education any more than clergy selection,[117] the argument here is that = subchapter=20 G=92s standards are not constitutionally infirm because they apply to = graduate=20 education generally. Thus, we decline the invitation to analyze the Free = Exercise issues here apart from Smith, although we reiterate that = Smith made a point of noting that it did not involve =93the = communication=20 of religious beliefs=94 or =93any communicative activity=94, which is at = the heart of=20 the present case.

&nbs= p;=20 Accordingly, we turn to the matter of how Smith applies, first to = section=20 61.313=92s limitation on the use of =93seminary=94, and then to section = 61.304=92s=20 limitation on terms reflecting program-level educational attainment.

&nbs= p;=20 Undoubtedly, a statute regulating the use of = words like=20 =93church=94, =93mosque=94, and =93synagogue=94 by groups that do not = meet state standards=20 would not be a neutral law of general applicability permissible under=20 Smith because the words=92 meanings are exclusively religious,[118] and a law regulating their = use would=20 thus target religion. The Supreme Court said as much in Lukumi when it concluded that regulation of = =93sacrifice=94 and =93ritual=94 was consistent with but not conclusive = of facial=20 discrimination because those words did not refer exclusively to = religious=20 practices,[119] implying that if they had, it = would=20 have reached the opposite conclusion.

&nbs= p;=20 The meaning of =93seminary=94 is also not exclusively religious. Its = origin is=20 secular and only metaphorically related to education. Derived from the = Latin=20 semen, meaning =93seed=94, =93seminary=94 once meant a seedbed = but later a=20 school, where, figuratively speaking, seeds of knowledge are planted.[120] The sixteenth-century Council = of Trent=20 of the Roman Catholic Church gave seminaries a distinctly religious = cast,=20 compared to other educational institutions like colleges and = universities which=20 were also often religious schools, by adopting a =93Method of = establishing=20 Seminaries for Clerics, and of educating the same therein=94.[121] But the Church=92s employment = of the word=20 did not co-opt its meaning. Eighteenth-century seminaries in the=20 United=20 States were understood to include both = secular=20 and religious schools.[122] And today, =93seminary=94 is = still defined=20 as a school, not solely a religious school.[123]

&nbs= p;=20 Primarily, however, =93seminary=94 is used to refer to a religious = school. The=20 Coordinating Board has not pointed us to a single secular seminary in = Texas, or even in the United = States,=20 for that matter, either at present or in 1997 when the Legislature = amended=20 section 61.313 to include =93seminary=94 with =93college=94, = =93university=94, and other=20 institutional names as restricted words. That is not to say there are = none at=20 all, but the fact that they are rare describes the context in which the = 1997=20 amendment was proposed and adopted.

&nbs= p;=20 So does a provision added to the Texas Constitution in 1876. Article I, = section=20 7 prohibits appropriation of public funds for any =93theological or = religious=20 seminary=94.[124] In 1908, we observed that = =93the=20 adjectives =91theological or religious=92 necessarily give = [=93seminary=94] the=20 meaning of a place specifically for the preparation of men for the = ministry, or=20 at least, for the teaching of religious doctrines=94,[125] thereby suggesting that the = word=20 without the modifiers would not be clearly understood to mean a = religious=20 school. But two other aspects of the framers=92 phrasing are worth = noting. They=20 obviously recognized that =93theological or religious=94 and = =93seminary=94 fit=20 together, that it made sense to refer to seminaries as theological or = religious=20 because seminaries often were. And they appear to have thought it made = more=20 sense than referring to theological or religious colleges or = universities,=20 surely not because such institutions were nonexistent, but because the = use of=20 =93seminary=94 alone fully achieved their purpose of banning =93[a]ppropriations for sectarian purposes=94, as the = caption=20 stated. The framers=92 choice of words indicates their understanding = that=20 seminaries were distinctly, though not exclusively, religious = schools.

&nbs= p;=20 That same understanding is reflected elsewhere in the Education Code. In = 1989,=20 the Legislature created a work-study program =93to provide eligible, = financially=20 needy students with jobs, funded in part by the State of Texas=94.[126] Eligibility requirements are = minimal,[127] but a person is specifically = ineligible=20 if he or she =93(1) receives an athletic scholarship; or (2) is enrolled = in a=20 seminary or other program leading to ordination or licensure to preach = for a=20 religious sect or to be a member of a religious order.=94[128] These are narrow categories, = obviously=20 intended to exclude small groups of students. The Legislature did not = exclude=20 all seminary students from the program, but only those in a religious = course of=20 study, and among them, only the ones aspiring to religious service. The = language=20 thus suggests that not all seminary education is religious. But it also = suggests=20 that the one word =93seminary=94 fully conveys the idea of religious = education,=20 leaving =93other=94 to include any such programs in colleges, = universities, and=20 other institutions.

&nbs= p;=20 No legislative history explains the Legislature=92s intent in amending = section=20 61.313 to add =93seminary=94 to names institutions are restricted in = using, but it=20 must have recognized that the amendment would ensure regulation of the = kind of=20 religious study and clerical training for which seminaries primarily are = known.=20 Indeed, it is hard to imagine that the Legislature had anything less = specific in=20 mind, given that the other additions to the list were specific names for = medical=20 and law schools. Although the amendment may not have been aimed at = religious=20 practices quite as squarely as the ordinances in Lukumi, its target was certainly smaller = than the=20 general public health protected by the statute in Smith.

&nbs= p;=20 The Coordinating Board argues that the amendment did not alter the fact = that=20 section 61.313 is neutral in its purposes of setting high standards for=20 post-secondary education and prohibiting =93diploma mills=94. Even if = all seminaries=20 were religiously affiliated, the Board contends, a seminary education is = respected in the secular world and should meet the standards the public = expects=20 for graduate education. Furthermore, the Board notes, religious subjects = can be=20 taught in secular programs. Sacred texts may be studied as literature, = religious=20 history without belief in divine direction, even creeds without a = profession of=20 faith, and the same standards should apply as for other programs. But = these=20 arguments exaggerate HEB Ministries=92 contention in this case. HEB = Ministries=20 does not contend that secular education, whether provided by seminaries = or other=20 institutions, even in religious subjects, is beyond state regulation; it = contends only that the State cannot regulate the religious education and = training of students as part of a religious mission.

&nbs= p;=20 The Coordinating Board insists that section 61.313 does not violate HEB=20 Ministries=92 Free Exercise rights by restricting its use of a single = word,=20 =93seminary=94, when others are available, like =93Biblical = Institute=94, =93Academy=94,=20 =93Center=94, =93School=94, =93School of=20 Religion=94, or =93School of = Theology=94. It is not clear = that the=20 Board=92s reading of the statute is correct. Section 61.313 restricts = not only the=20 use of a listed term but also =93a term having a similar meaning=94.[129] If the meanings of =93seminary=94, =93school=94, and =93school of = religion=94 are not=20 similar, then the meaning of =93similar=94 is itself unclear. If the = Board is wrong=20 and section 61.313 restricts not only the use of =93seminary=94 but any = other word=20 of related import, then the statute denies a religious school that does = not meet=20 state standards all access to names used by such schools. And if the = Board is=20 right, the statute nevertheless limits access to the name that, unlike = all=20 others available, distinctly describes religious schools. Either way, = the=20 statute, in its application to schools offering only religious = instruction,=20 targets religious practices, discriminating between those that comply = with state=20 standards from those that do not, and is not merely a neutral regulation = of=20 post-secondary education.

&nbs= p;=20 =93[A] law restrictive of religious practice must advance interests of = the highest=20 order and must be narrowly tailored in pursuit of those interests.=94[130] We have found only one other = state that=20 regulates use of the word =93seminary=94 as subchapter G does.[131] The Coordinating Board tells = us: =93The=20 State has a strong interest in ensuring that =91seminaries=92 are in = fact genuine=20 places of study and academic learning.=94 With respect to religious = courses of=20 study, we think the State has no such interest at all and is in fact = incapable=20 of determining what is =93genuine=94 religious = study and=20 learning and what is not. The Board argues that to exclude seminaries = from the=20 State=92s regulation of post-secondary education would seriously = undermine its=20 effectiveness, but HEB Ministries does not argue for so broad an = exclusion. It=20 contends only that a school=92s religious programs need not meet state = standards=20 before it can call itself a seminary. None of the instances of diploma = mills=92=20 fraud on the public cited by the Board involves such programs. In sum, = the Board=20 has failed to show that the State has any interest in restricting use of = the=20 word =93seminary=94 by schools offering religious instruction, let alone = an interest=20 of the highest order.

&nbs= p;=20 Accordingly, we conclude that section 61.313=92s restriction on the use = of the=20 name =93seminary=94 by schools offering only religious programs of study = violates=20 the Free Exercise guarantees of the First Amendment and the Texas=20 Constitution.

&nbs= p;=20 HEB Ministries does not challenge the State=92s authority to require = that a=20 private post-secondary educational institution meet prescribed standards = before=20 it can grant degrees, which is what section 61.304 does, but contends = that=20 section 61.302(1) defines =93degree=94 so broadly that a non-compliant = school is=20 effectively left with no words to describe educational attainment. For = religious=20 study programs, HEB Ministries asserts, this pressure to comply with = subchapter=20 G=92s standards governing a school=92s operation and curriculum content = violates the=20 Free Exercise Clause.

&nbs= p;=20 The first premise of HEB Ministries=92 constitutional complaint is = correct.=20 Section 61.302(1) casts a wide net, defining =93degree=94 to include not = only the=20 designations =93associate=94, =93bachelor=92s=94, =93master=92s=94, and = doctor=92s=94, but =93their=20 equivalents=94, as well as =93any title or designation, mark, = abbreviation,=20 appellation, or series of letters or words . . . which signifies, = purports to=20 [signify], or is generally taken to signify satisfactory completion of = the=20 requirements of all or part of a program of study leading to [a] . . . = degree=20 or its equivalent.=94 [132] The last clause forms a = linguistic=20 M=F6bius strip: a degree is not only = anything that could=20 possibly signify a degree, but also the equivalent of anything that = could=20 possibly signify a degree, which includes the equivalent of . . . , and = so on.=20 The Coordinating Board suggests in its brief that the definition = excludes four=20 terms, =93certificate=94, =93advanced certificate=94, =93diploma=94, and = =93higher diploma=94,=20 but those exceptions are nowhere to be found in subchapter G or in the = Board=92s=20 regulations. The Board offers no explanation why they alone do not = signify, do=20 not purport to signify, and are not generally taken to signify a degree = or its=20 equivalents, and no explanation is apparent, especially in the context = of this=20 case. HEB Ministries was fined $30,000 for awarding two = =93certificates=94 and four=20 =93diplomas=94 in =93Biblical Studies=94 because the Commissioner = concluded that Tyndale alleged that completed courses could be = applied=20 toward a degree. HEB Ministries was fined another $10,000 for awarding = two=20 =93diplomas=94 in =93Christian Studies=94 because the Commissioner found = that Tyndale would accept them for admission to more = advanced=20 study in what it called =93master=92s=94 programs. Not one of these = eight awards was=20 called a =93degree=94 or designated =93associate=94, =93bachelor=92s=94, =93master=92s=94, or = =93doctor=92s=94 or otherwise seems to=20 have signified a degree.

&nbs= p;=20 We realize we must construe statutes to avoid constitutional problems = when we=20 can,[133] but we cannot create = exceptions where=20 none appears to exist. It is hardly surprising, of course, that = =93degree=94 is=20 defined broadly; the purpose of subchapter G is to ensure compliance, = not to=20 provide a safe haven for noncompliant schools. Even if the definition of = =93degree=94 admits exceptions, the use of any words remotely resembling = ordinary=20 educational terminology is risky. A violation of section 61.304 carries=20 criminal, civil, and administrative liability.[134] If Subchapter G does not = actually=20 restrict all terminology ordinarily used to mark educational attainment, = it=20 effectively does so.

&nbs= p;=20 The second premise of HEB Ministries=92 complaint is also correct: = section=20 61.304=92s prohibition against granting degrees, defined to include all = useful=20 terminology, strongly encourages, to the point of coercion, compliance = with=20 standards set by the Coordinating Board. Again, this is hardly = surprising.=20 Subchapter G is designed to ensure that private post-secondary schools = operating=20 in Texas meet=20 prescribed standards. If it were easier for a school not to comply, the=20 statute=92s effectiveness would be impaired. The Board insists that = compliance is=20 voluntary, by which it means that it is possible for a school to refuse, = but the=20 consequences of refusal are severe.

&nbs= p;=20 We come, then, to the issue of whether this state regulation of the = terminology=20 used in recognizing student attainment, as applied to religious = educational=20 programs, violates the Free Exercise Clause. The Coordinating Board = argues that=20 because the regulation does not target religious programs, but applies = to=20 secular and religious programs alike, it is a = neutral=20 law of general applicability that, according to the rule in = Smith, does=20 not impact Free Exercise rights. This argument, we think, focuses too = narrowly=20 on the concepts of neutrality and general applicability, separate from = the First=20 Amendment=92s concerns they are meant to help analyze, and reduces them = to a rule=20 that a regulation is permitted as long as it is universal. Justice Souter=92s hypothetical involving Prohibition and = the=20 Eucharist illustrates the fallacy in such a rule.[135] A law is not neutral or = generally=20 applicable for purposes of applying the Free Exercise Clause merely = because it=20 affects everyone; it is important how religion is affected differently = because=20 it is religion. This concern is critical when the law affects = communication, as=20 the Supreme Court plainly implied in Smith by reemphasizing that = the law=20 there had no such effect.[136]

&nbs= p;=20 Standards for the content of educational instruction are not neutral = with regard=20 to religious studies merely because they also apply to secular studies, = as the=20 standards under subchapter G plainly show. Academic freedom, for = example, which=20 the Coordinating Board=92s standards require, has no more than a limited = role, and=20 perhaps no place at all, in a school whose mission is to advance the = doctrinal=20 tenets of a specific faith. Study in general subjects outside a = student=92s major,=20 a desirable requirement for a liberal arts education, may be considered = a=20 distraction or worse by someone preparing for the ministry or other = religious=20 service. These are but two examples. A secular educator=92s meat may be = a=20 religious educator=92s poison, and vice versa. Standards that improve = the quality=20 of secular education while impairing sectarian education discriminate = against=20 religion. The Coordinating Board argues that its standards benefit = religious=20 education, but that is a judgment call the First Amendment does not = permit the=20 State to make.[137] In any event, the Board = argues, the=20 intent is to benefit all educational programs. But while we can easily = assume=20 this to be true, we must also consider the effect of the standards on = schools=20 like Tyndale with a religious mission. The = Board=20 argues that section 61.304 regulates only the granting of degrees, = something=20 that is well within the State=92s authority, not how religious subjects = are=20 taught. But the statute=92s prohibition on granting degrees is so = pervasive that=20 its effect is necessarily coercive, as indeed it is intended to be.

&nbs= p;=20 In the sense that section 61.304 is directed to a problem, diploma abuse, that did not originate in or have any = distinct=20 association with any religious practice, the statute more closely = resembles the=20 drug law upheld in Smith than the animal sacrifice ordinances = struck down=20 in Lukumi. But section 61.304 = strongly=20 encourages compliance with state educational standards, which in turn = affect the=20 content and operation of religious educational programs, and in that = sense, the=20 statute not only differs from the laws in both cases, it affects =93the=20 communication of religious beliefs=94 against which Smith = pointedly=20 warned.[138] We therefore conclude that = the Free=20 Exercise Clause requires that it =93must advance interests of the = highest order=20 and must be narrowly tailored in pursuit of those interests.=94[139]

&nbs= p;=20 =93The compelling interest standard that we apply once a law fails to = meet the=20 Smith requirements is not =91water[ed] . . . down=92 but = =91really means what=20 it says.=92=94 [140] The Legislature has = identified the=20 State=92s interests as =93prevent[ing] = deception of the=20 public resulting from the conferring and use of fraudulent or = substandard=20 college and university degrees=94, =93regulation by law of the evidences = of college=20 and university educational attainment=94, and =93protection of = legitimate=20 institutions and of those holding degrees from them=94.[141] Amici curiae=20 argue that these interests are hardly compelling when the public can = easily=20 protect itself with relatively simple inquiries into the credentials of = an=20 educational institution and its graduates. But the Coordinating Board = insists=20 that =93[d]egree mills continue to be a = serious=20 worldwide problem.=94 [142] The Board points to various = articles=20 and studies chronicling instances of harm caused by bogus academic = credentials.=20 The stipulated record on which this case was submitted in the trial = court=20 contains no evidence regarding the importance of the State=92s interests = in=20 subchapter G.

&nbs= p;=20 We do not doubt the importance of the State=92s interests, but we = nevertheless=20 conclude that section 61.304 is not narrowly tailored to pursue those = interests=20 and avoid unnecessary interference with religious studies. The Board has = not=20 identified any instance of diploma fraud involving religious programs, = or any=20 complaint that an award of a diploma in religious studies did not = represent the=20 expected academic achievement. Thus, it is not clear that the purpose of = subchapter G would be impaired in any way if religious programs were = exempted=20 altogether. At the very least, section 61.304=92s restrictions on all = terminology=20 relating to degrees need not be so pervasive for religious programs. The = Board=20 worries that any exception for religious schools might violate the = Establishment=20 Clause, but HEB Ministries does not argue that religious institutions = offering=20 secular education programs should be exempt from state standards. Amici argue that the State=92s interest would be = fully served=20 by requiring noncompliant institutions to disclose their lack of = accreditation,=20 even on academic award certificates. The Board does not argue that this, = too,=20 would raise First Amendment concerns but asserts only that it would be=20 ineffective. It has not, however, provided support for its = assertion.

&nbs= p;=20 The Board cites cases by the supreme courts of New=20 Jersey and Tennessee upholding state regulation = of=20 graduate schools against challenges by religious institutions. In the = New Jersey case, Shelton College, which we have = already=20 discussed, a religious school that offered both secular and religious=20 instruction argued that state regulation of religious schools violated = the First=20 Amendment.[143] The court held that the Free = Exercise=20 Clause did not require a blanket exemption of religious schools from = state=20 regulation.[144] But as we have said, the = regulation was=20 not as pervasive as subchapter G, and Shelton College did not limit its = argument to its=20 religious programs. In Tennessee ex=20 rel. McLemore v. Clarksville School of Theology, the = Tennessee=20 Supreme Court upheld broad state regulation of a theological school that = trained=20 only ministers, offered no secular courses, and granted only theological = degrees.[145] We respectfully disagree with = that=20 court=92s decision.

&nbs= p;=20 Finally, in an opinion the Board does not cite, the Texas Attorney = General=20 addressed whether subchapter G would violate the Free Exercise Clause as = applied=20 to a =93university=94 that offered only religious instruction.[146] Relying heavily on the = Shelton=20 College decision, and without expressing a view on whether the = statute=20 burdened Free Exercise rights, the opinion concluded that =93a court = would=20 conclude that [subchapter G] and the regulations adopted thereunder by the Coordinating Board, as a general = matter=20 are the least restrictive means of achieving the state=92s interest in = maintaining=20 the integrity of the postsecondary degrees and protecting its citizens = from=20 fraud and misleading representations.=94 [147] We respectfully disagree.[148]

&nbs= p;=20 Accordingly, we conclude that section 61.304=92s restriction on the = words that a=20 religious institution may use to refer to completion of religious = programs of=20 study is so broad that it violates the Free Exercise guarantees of the = First=20 Amendment and the Texas Constitution. The State may not deny a religious = program=20 of study clearly denominated as such the use of all words capable of = describing=20 educational achievement. As we have said, HEB Ministries does not = complain of=20 the statute=92s restriction on the use of the word =93degree=94, and we = do not=20 consider whether it is permissible.

* * *

&nbs= p;=20 The judgment of the court of appeals is reversed and the case is = remanded to the=20 trial court to vacate its injunction and award of penalties, to consider = HEB=20 Ministries=92 application for attorney fees,[149] and for further proceedings = in=20 accordance with this opinion.

_________________________

Nathan L.=20 Hecht

Justice

Opinion delivered: = August 31,=20 2007

^[1]=20 114 S.W.3d 617 (Tex. App.=97Austin 2003).

^[2]=20 Webster=92s Third New = International=20 Dictionary 638 (1981).

^[3]=20 Tex. Educ. = Code =A7=A7 = 61.001-.9732.

^[4]=20 Id. =A7=20 61.301.

^[5]=20 Id. =A7 61.302(2) (=93=91Private postsecondary educational = institution=92 or=20 =91institution=92 means an educational institution which: (A) is not an = institution=20 of higher education as defined by Section 61.003 [generally, a public = school];=20 (B) is incorporated under the laws of this state, maintains a place of = business=20 in this state, has a representative present in this state, or solicits = business=20 in this state; and (C) furnishes or offers to furnish courses of = instruction in=20 person, by electronic media, or by correspondence leading to a degree or = providing credits alleged to be applicable to a degree.=94); id. = =A7=20 61.003(8) (=93=91Institution of higher education=92 means any public = technical=20 institute, public junior college, public senior college or university, = medical=20 or dental unit, public state college, or other agency of higher = education as=20 defined in this section.=94). An exception for = certain=20 non-profit schools, id. =A7 61.313(d), = and a=20 =93grandfather=94 exception, id. =A7 61.313(e)-(g), are = not relevant=20 here.

^[6]=20 Id. =A7=20 61.021(a) (=93The Texas Higher Education Coordinating Board is an agency = of the=20 state. . . .=94); id. =A7 61.002(a) (=93[The Board] provide[s] = leadership and=20 coordination for the Texas higher education system, institutions, and = governing=20 boards, to the end that the State of Texas may achieve excellence for = college=20 education of its youth through the efficient and effective utilization = and=20 concentration of all available resources and the elimination of costly=20 duplication in program offerings, faculties, and physical plants.=94); = id.=20 =A7 61.022(a) (=93The board shall consist of nine members appointed by = the governor=20 so as to provide representation from all areas of the state . . . . = Members of=20 the board serve staggered six-year terms.=94).

^[7]=20 Act of May 27, 1975, 64th Leg., R.S., ch. = 587, =A7 1,=20 1975 Tex. Gen. Laws 1867, 1870 (=93No person may use the term = =91college=92 or=20 =91university=92 in the official name or title of a private institution = of higher=20 education established after the effective date of this subchapter and = subject to=20 its provisions unless the institution has been issued a certificate of = authority=20 to grant a degree or degrees.=94).

^[8]=20 Tex. Educ. = Code =A7 61.313(a). = See also=20 id. =A7 61.313(c) (=93A person may not use the term = =91college,=92 =91university,=92=20 =91seminary,=92 =91school of medicine,=92 =91medical school,=92 = =91health science center,=92=20 =91school of law,=92 =91law school,=92 or =91law center=92 in the = official name or title of=20 an educational or training establishment.=94) and (d) (=93This section = does not=20 apply to an institution of higher education or a private institution of = higher=20 education as defined by Section 61.003.=94); id. =A7=A7 61.003 = (8), (15)(=93Private or independent institution of higher = education=94 is=20 one, inter alia, organized as = non-profits,=20 tax-exempt under Tex. Const. art. VIII =A7 2 and federal statute, and = accredited=20 by certain entities), =A7 61.302(9) (=93=91Educational or training = establishment=92=20 means an enterprise offering a course of instruction, education, or = training=20 that the establishment does not represent to be applicable to a=20 degree.=94).

^[9]=20 Act of May 25, 1993, 73rd Leg., R.S., ch. = 516, =A7 7,=20 1993 Tex. Gen. Laws 1949, 1950, formerly Tex. Educ. = Code =A7 61.304. A 2005 = amendment=20 added =93or offer to grant or award a degree=94 to the first sentence, = assigned=20 these three sentences, respectively, to subsections (a) through (c), and = added=20 new subparagraphs (d)-(f). Act of May 25, 2005, 79th Leg., R.S., ch. 1039, =A7 3, 2005 Tex. Gen. Laws 3499, 3500.

^[10] Tex. Educ. Code =A7 = 61.302(1); see=20 also 19 Tex. Admin. Code =A7 7.3(7) (2007) (=93Degree =97 = Any title or=20 designation, mark, abbreviation, appellation, or series of letters or = words,=20 including =91associate=92, =91bachelor=92s=92, =91master=92s=92, = =91doctor=92s=92 and their=20 equivalents and foreign cognates, which signify, purport to signify, or = are=20 generally taken to signify satisfactory completion of the requirements = of all or=20 part of a program of study which is generally regarded and accepted as = an=20 academic degree-level program by accrediting agencies recognized by the=20 Board.=94).

^[11] Tex. Educ. = Code =A7 = 61.301.

^[12] 19 Tex. Admin.=20 Code =A7 7.3(4) (2007) (=93Certificate of authority =97 The = Board=92s approval of=20 institutions of higher education, (other than exempt institutions) with=20 operations in the state of Texas, to confer degrees or courses = applicable to=20 degrees, or to solicit students for enrollment in institutions that = confer=20 degrees or courses applicable to degrees.=94).

^[13] Tex. Educ. Code =A7 61.306(a) = (=93The board=20 may issue a certificate of authority to grant a degree or degrees and to = enroll=20 students for courses which may be applicable toward a degree if it finds = that=20 the applicant meets the standards established by the board for=20 certification.=94).

^[14] 19 Tex. Admin. Code =A7 7.7(1)-(21)=20 (2007).

^[15] 19 Tex. Admin.=20 Code =A7 5.214(a)(1)-(24) (1998), adopted 22 Tex. Reg. = 11353,=20 11355-11357, (Nov. 21, 1997).

^[16] 19 Tex. Admin. Code =A7 7.7 (2007); = 19=20 Tex. Admin. Code =A7 = 5.214(a) (1998)=20 (referring to standards =93generally set forth by the Commission on = Colleges,=20 Southern Association of Colleges and Schools and by specialized = accrediting=20 bodies and several academic and professional societies . . . = .=94).

^[17] 19 Tex. Admin.=20 Code =A7 5.214(a)(5) (1998); = accord 19=20 Tex. Admin.=20 Code =A7 7.7(9)(A), (B) & (E) = (2007). In 2005,=20 a caveat was added to these requirements for persons with exceptional=20 experience. Id. =A7 7.7(9)(F) (=93With = the approval=20 of a majority of the institution=92s governing board, an individual with = exceptional experience in the field of appointment, which may include = direct and=20 relevant work experience, professional licensure and certification, = honors and=20 awards, continuous documented excellence in teaching, or other = demonstrated=20 competencies and achievements, may serve as a faculty member without the = degree=20 credentials specified above. Such appointments shall be limited and the=20 justification for appointment fully documented. The Coordinating Board = shall=20 evaluate the qualifications of the full complement of faculty providing=20 instruction at the institution to determine that such appointments are = justified=20 and make up a small percentage of the faculty as a whole.=94), = adopted 30=20 Tex. Reg. 2663 (May 6, 2005). In 2006, an additional requirement was = added.=20 Id. =A7 7.7(2)(B) (=93The chief academic officer shall hold an = earned=20 doctorate awarded by an institution accredited by an agency recognized = by the=20 Board or from a foreign institution demonstrated to be equivalent to an=20 accredited institution, and shall demonstrate sound aptitude for and = experience=20 with curriculum development and assessment; accreditation standards and=20 processes as well as all relevant state regulations; leadership and = development=20 of faculty, including the promotion of scholarship, research, service, = academic=20 freedom and responsibility, and tenure (where applicable); and the = promotion of=20 student success.=94), adopted 31 Tex. Reg. 6327 (Aug. 11, = 2006).

^[18] 19 Tex. Admin.=20 Code =A7 5.214(a)(8) (1998); = accord 19=20 Tex. Admin.=20 Code =A7 7.7(13)(A)-(B) = (2007).

^[19] 19 Tex. Admin.=20 Code =A7 5.214(a)(1) (1998); = accord 19=20 Tex. Admin.=20 Code =A7 7.7(2) (2007).

^[20] 19 Tex. Admin Code =A7 = 5.214(a)(3) (1998); accord 19 Tex. Admin. Code =A7 7.7(4)=20 (2007).

^[21] 19 Tex. Admin Code =A7 = 5.214(a)(5) (1998); accord 19 Tex. Admin. Code =A7 7.7(9)=20 (2007).

^[22] 19 Tex. Admin Code =A7 = 5.214(a)(6) (1998); accord 19 Tex. Admin. Code =A7 7.7(10)=20 (2007).

^[23] 19 Tex. Admin Code =A7 = 5.214(a)(7) (1998); accord 19 Tex. Admin.=20 Code =A7 7.7(12)(A) (2007).

^[24] 19 Tex. Admin Code =A7 = 5.214(a)(11) (1998); accord 19 Tex. Admin. Code =A7 7.7(16)=20 (2007).

^[25] 19 Tex. Admin Code =A7 = 5.214(a)(12) (1998); accord 19 Tex. Admin. Code =A7 7.7(5)=20 (2007).

^[26] 19 Tex. Admin.=20 Code =A7 5.214(a)(14) (1998); = accord 19=20 Tex. Admin.=20 Code =A7 = 7.7(11)=20 (2007).

^[27] Tex. Educ. Code =A7 61.306(b) = (=93A=20 certificate of authority to grant a degree or degrees is valid for a = period of=20 two years from the date of issuance.=94).

^[28] Id. =A7 61.308(a) (=93A = private=20 postsecondary educational institution which desires to renew its = certificate of=20 authority shall apply to the board at least 180 days prior to the = expiration of=20 the current certificate.=94)

^[29] 19 Tex. Admin.=20 Code =A7 5.215(d)(3) (1998) (=93An = institution may=20 be granted consecutive certificates of authority for no longer than = eight years.=20 Absent sufficient cause, at the end of the eight years, the institution = must=20 have been accredited by a recognized accrediting agency.=94); = accord 19=20 Tex. Admin.=20 Code =A7 7.6(c)(3) (2007).

^[30] Tex. Educ. = Code =A7 61.303(a) (=93The provisions of this = subchapter do=20 not in any way apply to an institution which is fully accredited by a = recognized=20 accrediting agency.=94); id. =A7 61.302(8) = (=93=91Recognized=20 accrediting agency=92 means an association or organization so designated = by rule=20 of the board for the purposes of this subchapter.=94).

^[31] 19 Tex. Admin.=20 Code =A7 5.211 (1998), adopted 22 Tex. Reg. 11353 (Nov. 21, 1997) (=93Recognized = accrediting=20 agency =97 The Commission on Colleges, Southern Association of Colleges = and=20 Schools; the American Association of Bible Colleges; or the Association = of=20 Theological Schools in the United=20 States and Canada.=94).

^[32] 19 Tex. Admin.=20 Code =A7 7.4(a)(1) (2007) (=93For purposes of the exemption, the = Board=20 currently recognizes the following accrediting agencies: the Commission = on=20 Higher Education, Middle States Association of Colleges and Schools; the = Commission on Institutions of Higher Education, New England Association = of=20 Schools and Colleges; the Commission on Institutions of Higher = Education, North=20 Central Association of Colleges and Schools; the Northwest Commission on = Colleges and Universities, the Commission on Colleges, Southern = Association of=20 Colleges and Schools; the Accrediting Commission for Community and = Junior=20 Colleges and Accrediting Commission for Senior Colleges and = Universities,=20 Western Association of Schools and Colleges; the Association of Biblical = Higher=20 Education (undergraduate only); and the Association of Theological = Schools in=20 the United States and Canada.=94).

^[33] 19 Tex. Admin.=20 Code =A7 5.213(i)(2)=20 (1998); accord Tex. = Admin. Code =A7 7.5(f)(2)=20 (2007).

^[34] Tex. Educ. = Code =A7 61.303(c) (=93An exempt institution = or person may=20 be issued a certificate of authorization to grant degrees.=94); 19=20 Tex. Admin. Code =A7 = 7.4(d) (2007)=20 (=93A new institution may not presume exempt status and offer to award = degrees or=20 courses leading to degrees until it has applied for and been granted a=20 certificate of authorization by the Commissioner.=94); id. =A7 = 7.3(5)=20 (=93Certificate of authorization =97 The Board=92s acknowledgment that = an institution=20 is qualified for an exemption from the regulations = herein.=94).

^[35] 28 Tex. Reg. 4131 (May 23, 2003) = (explaining that=20 the regulations were being amended to =93add definitions of = =91certificate of=20 authority=92 and of =91certificate of authorization=92 to explain the = different types=20 of certificates available to institutions=94).

^[36] Tex. Educ. Code =A7 61.304(d) = (=93A person=20 commits an offense if the person: (1) grants or awards a degree or = offers to=20 grant or award a degree in violation of this section . . . .=94); = id. =A7=20 61.304(e) (=93An offense under Subsection (d) is a Class A = misdemeanor.=94);=20 id =A7 61.313(h) (=93A person commits an offense if the person: = (1) uses a=20 term in violation of this section . . . .=94); id. =A7 = 61.313(i) (=93An offense under Subsection (h) is a Class = A=20 misdemeanor.=94); Tex. Penal = Code =A7=20 12.21 (=93An individual adjudged guilty of a Class A misdemeanor shall = be punished=20 by: (1) a fine not to exceed $4,000; (2) confinement in jail for a term = not to=20 exceed one year; or (3) both such fine and confinement.=94).

^[37] Tex. Educ. Code =A7 61.318(a) = (=93The=20 commissioner may report information concerning a possible violation of = this=20 subchapter to the attorney general. The attorney general shall make the=20 necessary investigations and shall bring suit to enjoin any violation of = this=20 subchapter.=94).

^[38] Id. =A7 61.319(a) (=93A = person who violates=20 this subchapter or a rule adopted under this subchapter is liable for a = civil=20 penalty in addition to any injunctive relief or any other remedy. A = civil=20 penalty may not exceed $1,000 a day for each violation.=94).

^[39] Id. =A7 61.316(a) (=93If a = person violates=20 a provision of this subchapter, the commissioner may assess an = administrative=20 penalty against the person as provided by this section. . . .=94); = id. =A7=20 61.316(b) (=93Any person who confers or offers to confer a degree on = behalf of a=20 private postsecondary educational institution subject to the provisions = of this=20 subchapter which has not been issued a certificate of authority to grant = degrees=20 or who represents that credits earned or granted by that person or = institution=20 are applicable for credit toward a degree to be granted by another = person or=20 institution except under conditions and in a manner specified and = approved by=20 the board shall be assessed an administrative penalty of not less than = $1,000 or=20 more than $5,000. Each degree conferred without authority constitutes a = separate=20 offense.=94); id. =A7 61.316(c) (=93Any person who establishes a = private=20 postsecondary educational institution that is not exempt from this = subchapter=20 and uses a term protected under this subchapter in the official name of = the=20 institution without first having been issued a certificate of authority = for the=20 institution under this subchapter or any person who establishes an = educational=20 or training establishment and uses a term protected under this = subchapter in the=20 official name or title of the establishment shall be assessed an = administrative=20 penalty of not less than $1,000 or more than $3,000.=94).

^[40] Id. =A7 61.028(a) (=93The = board shall=20 appoint a commissioner of higher education, who shall select and = supervise the=20 board=92s staff and perform other duties delegated to him by the board. = The=20 commissioner shall serve at the pleasure of the board.=94); 19 Tex. Admin. Code =A7 7.16(a) = (2007) (=93If a=20 person or institution violates a provision of this subchapter, the = Commissioner=20 may assess an administrative penalty against the person or institution = as=20 provided in this section.=94); 19 Tex. Admin. Code =A7 5.221(a) (1998) (=93If a person = violates a=20 provision of this subchapter, the commissioner may assess an = administrative=20 penalty against the person as provided by = law.=94).

^[41] Tex. Educ. Code =A7 61.320(a) = (=93A person=20 who violates this subchapter commits a false, misleading, or deceptive = act or=20 practice within the meaning of Section 17.46, Business & Commerce=20 Code.=94).

^[42] =93HEB=94 refers to the = Hurst-Euless-Bedford=20 area between Fort Worth and Dallas.

^[43] These were captioned =93The = Scriptures=94, =93The=20 Godhead=94, =93Angels, Fallen and Unfallen=94, =93Man, Created=20 and Fallen=94, =93God=92s Eternal Purpose=94, =93The First Advent of = Christ=94, =93Salvation=20 Only Through Christ=94, =93The Extent of Salvation=94, =93Eternal = Security=94, =93The Holy=20 Spirit=94, =93The Great Commission=94, =93The Blessed Hope=94, =93The = Tribulation=94, =93The=20 Second Coming of Christ=94, =93The Eternal State=94, =93Current = Issues=94, and =93Women and=20 Ministry=94.

^[44] These were: =93Certificate of = Biblical=20 Studies=94; =93Diploma of Basic Biblical Studies=94; =93Associate Level = Diploma of=20 Biblical Studies=94; =93Diploma of Advanced Biblical Studies=94; = =93Diploma of=20 Theological Studies=94; =93Diploma of Christian Studies=94; =93Graduate = Diploma=94 in=20 =93Systematic Theology=94 and in =93Ministry and Christian = Counseling=94; =93Master of=20 Arts Level Diploma=94 in =93General Biblical Studies=94, in = =93Counseling=94, in=20 =93Apologetics=94, in =93Languages=94, and in =93Missions=94; =93Doctor = of Ministries Level=20 Diploma=94 in =93General Biblical Studies=94 and in =93Counseling=94; = =93Master of=20 Ministries Level Diploma=94; =93Master of Systematic Theology Level = Diploma=94;=20 =93Doctor of Theology Level Diploma=94; =93Doctor of Theology Level = Diploma in=20 Prophetic Studies=94; and =93Ph.D. Level Diploma in Prophetic = Studies=94. The=20 counseling programs were expressly religious and not secular, and the = language=20 programs were for biblical study.

^[45] This would violate current = regulations.=20 19 Tex. Admin. = Code =A7=20 7.14(a)(2) (=93A person or institution may not . . . represent that = credits earned=20 or granted are collegiate in nature, including describing them as=20 =91college-level,=92 or at the level of any protected academic term . . = . .=94),=20 adopted 31 Tex. Reg. 1023 (Feb. 17, 2006).

^[46] See Tex. Educ. Code =A7 61.316(f) = (=93An=20 institution may appeal an administrative penalty in the manner provided = by=20 Chapter 2001, Government Code.=94).

^[47] What was then section 61.304 is = now section=20 61.304(a)-(c). Supra note 9.

^[48] The petition also alleged that = the statutes=20 violate article I, section 29 of the Texas Constitution (=93To guard = against=20 transgressions of the high powers herein delegated, we declare that = everything=20 in this "Bill of Rights" is excepted out of the general powers of = government,=20 and shall forever remain inviolate, and all laws contrary thereto, or to = the=20 following provisions, shall be void.=94), and that section 61.304 of the = Texas=20 Education Code violates due process guaranteed by the Fourteenth = Amendment to=20 the United States Constitution and article I, section 19 of the Texas=20 Constitution. None of these claims is material to this appeal.

^[49] U.S. Const. amend. I (=93Congress shall make no law . . . = abridging the=20 freedom of speech . . . .=94).

^[50] 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).

^[51] 114 S.W.3d 617 (Tex. = App.=97Austin=20 2003).

^[52] 48 Tex. Sup. Ct. J. 146 (Dec. 3, = 2004).

^[53] The Attorney General represents = respondents=20 but is no longer a party to the case.

^[54] U.S. Const. amend. I (=93Congress shall make no law respecting = an=20 establishment of religion . . . .=94); Cantwell v. Conn., 310=20 U.S. 296, 303 (1940) = (=93The=20 fundamental concept of liberty embodied in [the Fourteenth] Amendment = embraces=20 the liberties guaranteed by the First Amendment. The First Amendment = declares=20 that Congress shall make no law respecting an establishment of religion = or=20 prohibiting the free exercise thereof. The Fourteenth Amendment has = rendered the=20 legislatures of the states as incompetent as Congress to enact such=20 laws.=94).

^[55] Tex. Const. art. I, =A7 6 = (=93[N]o preference=20 shall ever be given by law to any religious society or mode of worship. = But it=20 shall be the duty of the Legislature to pass such laws as may be = necessary to=20 protect equally every religious denomination in the peaceable enjoyment = of its=20 own mode of public worship.=94).

^[56] Williams v. Lara, 52 = S.W.3d 171, 186=20 (Tex.=20 2001).

^[57] In re Commitment of = Fisher, 164=20 S.W.3d 637, 645 (Tex. 2005) (=93Where, as here, the parties have not = argued that=20 differences in state and federal constitutional guarantees are material = to the=20 case, and none is apparent, we limit our analysis to the United States=20 Constitution and assume that its concerns are congruent with those of = the Texas=20 Constitution.=94); see also Tilton v. Marshall, 925 S.W.2d = 672, 677=20 n.6 (Tex. 1996) (=93Because Tilton has not argued persuasively for a = different=20 application of the provisions of the First Amendment and Article I, = Section 6 as=20 they pertain to the free exercise of religion, we assume without = deciding that=20 the state and federal free exercise guarantees are coextensive with = respect to=20 his particular claims.=94).

^[58] Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947); = accord=20 Williams, 52 S.W.3d at 186.

^[59] See Gonzalez v. Roman = Catholic=20 Archbishop, 280 U.S. 1, 16 (1929) (=93[I]t = is the=20 function of the church authorities to determine what the essential=20 qualifications of a chaplain are and whether the candidate possesses = them.=94);=20 see also Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976) (reversing a = judgment=20 reinstating a deposed bishop).

^[60] See Lemon v. Kurtzman, 403 U.S. 602, 625 (1971) = (=93Under our=20 system the choice has been made that government is to be entirely = excluded from=20 the area of religious instruction and churches excluded from the affairs = of=20 government.=94).

^[61] 80 U.S. (13 Wall.) 679, = 728-729=20 (1872).

^[62] Roemer v. Bd. of Pub. Works, 426 = U.S. = 736,=20 745-747 (1976) (plurality opinion) (footnote=20 omitted).

^[63] See Lemon, 403=20 U.S. at 625 (=93[G]overnment is to be entirely excluded from = religious=20 instruction=94).

^[64] See Roemer, 426=20 U.S. at 747 (=93The State = must confine=20 itself to secular objectives . . . .=94) (plurality=20 opinion).

^[65] Locke v. Davey, 540=20 U.S. 712, 721 = (2004).

^[66] Williams v. Lara, 52 = S.W.3d 171,=20 191-192 (Tex. 2001) (rejecting the argument that a county=92s religious = education=20 program for jail inmates posed no Establishment Clause problems because=20 participation was voluntary, citing, inter alia, Engel v. Vitale, 370 U.S. 421, = 430 (1962)=20 (rejecting the same argument regarding a state prayer program for public = school=20 students)).

^[67] See Brief of Amicus Curiae = Southwestern Baptist Theological Seminary at 1-2 (=93Southwestern finds, = however,=20 that the rigors of these accreditation processes take considerable time = and=20 personnel away from its educational programs and mission. Southwestern=20 understands that educational institutions that are small, financially=20 struggling, or that serve the needs of a religious order falling outside = what=20 might be considered to be the mainstream of popular faiths or ideologies = may not=20 posses either the individual or financial resources to participate in = the=20 accreditation process. Southwestern recognizes that the religious = teaching of=20 these institutions may be substantially =91chilled=92 if the State of = Texas is=20 permitted to set and enforce accreditation standards against these = institutions,=20 prevent the institutions from calling themselves =91seminaries=92, or = keep these=20 institutions from conferring religious certifications upon their=20 students.=94).

^[68] Larson v. Valente, 456 U.S. 228, 244 = (1982).

^[69] See Commack Self-Serv. Kosher Meats, Inc. v. Weiss, 294 F.3d = 415 (2d Cir.=20 2002); Barghout v. Bureau of = Kosher Meat=20 & Food Control, 66 F.3d 1337 (4th Cir. 1995); Ran-Dav=92s County Kosher, Inc. v. N.J., 608 A.2d = 1353 (N.J.=20 1992); but see National Foods, Inc. v. Rubin, 727 F. Supp. = 104,=20 109 (S.D.N.Y. 1989) (upholding a prosecution of a defendant for = violating a law=20 governing kosher food where the state alleged that the defendant acted = in bad=20 faith); Sossing Sys., Inc. v. = Miami=20 Beach, 262 So. 2d 28, 29-30 (Fla. Dist. App. Ct. = 1972).

^[70] Commack, 294 F.3d at=20 425.

^[71] 19 Tex. Admin.=20 Code =A7 5.214 (12)-(13) (1998); accord 19 Tex. Admin. Code =A7 7.7(5)-(6)=20 (2007).

^[72] 19 Tex. Admin.=20 Code =A7 5.214 (16), (24) (1998); accord 19 Tex. Admin. Code =A7 7.7(18)=20 (2007).

^[73] State v. Corpus Christi = People's Baptist=20 Church, Inc., 683 S.W.2d 692, 695 (Tex. 1984).

^[74] 403 U.S. = 602=20 (1971).

^[75] Williams v. Lara, 52 = S.W.3d 171, 189=20 (Tex. 2001)=20 (footnote and citations omitted).

^[76] 19 Tex. Admin Code =A7 = 5.214(a)(5) (1998); accord 19 Tex. Admin. Code =A7 7.7(9)=20 (2007).

^[77] See, e.g., = Santa = Fe Indep. Sch. Dist. v. = Doe, 530=20 U.S. 290, 319-320 (2000) (Rehnquist, C.J., dissenting) (describing=20 Lemon=92s =93checkered career=94); Lamb's Chapel v. Ctr. = Moriches Union Free=20 Sch. Dist., 508 U.S. 384, 398-399 (1993) = (Scalia, J., concurring); County of Allegheny v. = ACLU,=20 492 U.S. 573, 655-56 (1989) (Kennedy, J., concurring in part and = dissenting in=20 part); Corporation of the Presiding Bishop of the Church of Jesus = Christ of=20 Latter-Day Saints v. Amos, 483 U.S. 327, 346-349 (1987) (O=92Connor, = J.,=20 concurring); Committee for Pub. Educ. & Religious = Liberty v.=20 Regan, 444 U.S. = 646, 671=20 (1980) (Stevens, J., dissenting); Roemer v. Bd. of Pub. = Works,=20 426 U.S. 736, 768 (1976) = (White, J.,=20 concurring).

^[78] Williams v. Lara, 52 = S.W.3d 171, 190=20 (Tex. 2001) (citing Allegheny, 492 U.S. at 592); accord = Lynch=20 v. Donnelly, 465 U.S. 668, 688-694 (1984) (O=92Connor, J., = concurring);=20 Books v. City of Elkhart, 235 F.3d 292, 304-305 (7th Cir. 2000);=20 Brooks v. City of Oak Ridge, 222 F.3d 259, 264 (6th Cir. 2000); = Granzeier v. Middleton, 173 F.3d = 568, 572-573=20 (6th Cir. 1999); Cammack v. Waihee, = 932 F.2d=20 765, 773-780 (9th Cir. 1991).

^[79] 448 A.2d 988 (N.J. = 1982).

^[80] Id. at 990.

^[81] Id. at 997-998 (footnote and = citations=20 omitted).

^[82] 19 Tex. Admin.=20 Code =A7 5.213(i)(2)=20 (1998); accord Tex. = Admin. Code =A7 7.5(f)(2)=20 (2007).

^[83] As the court of appeals noted, = 114 S.W.3d=20 at 623, 628, subchapter G authorizes the Coordinating Board to extend an = institution=92s eligibility for certification if it has been denied = accreditation=20 based on its religious policies. Tex.=20 Educ. Code =A7 61.308(e) (=93If, after a good-faith effort, an = institution=20 cannot achieve accreditation within the period of time prescribed by the = board,=20 the institution may appeal for extension of eligibility for = certification=20 because of having been denied accreditation due to policies of the = institution=20 based on religious beliefs or other good and sufficient cause as defined = by rule=20 of the board. The board shall consider the application of any = accreditation=20 standard that prohibited accreditation of the institution on the basis = of=20 religious policies practiced by the institution as a prima facie = justification=20 for extending the eligibility for certification if all other standards = of the=20 board are satisfied.=94). The court of appeals thought that this = provision made=20 subchapter G=92s supervision of religious schools =93unobtrusive=94. = 114 S.W.3d at 628. The Coordinating Board has not = made that=20 argument in its briefs in this Court and has not cited section = 61.308(e),=20 although it did cite a corresponding regulation, 19 Tex. Admin.=20 Code =A7 7.6(c)(5) (2007), and pointed out in oral argument that = because=20 HEB Ministries has never been evaluated by the State, there has never = been an=20 opportunity for =93any court . . . to see if there is indeed a conflict = between=20 any of [the State=92s] requirements and [HEB Ministries=92] religious = beliefs or=20 practice.=94 The Board stops short of saying that it would have =96 or = even could=20 have =96 offered any special allowances for religious = institutions.

^[84] State v. Corpus Christi = People=92s Baptist=20 Church, Inc., 683 S.W.2d 692, 694-695 (Tex. 1984) (quoting Walz v. Tax Comm=92n,=20 397 U.S. 664, 668 (1970)).

^[85] U.S. Const. amend. I (=93Congress shall make no law . . . = prohibiting the=20 free exercise of [religion] . . . .=94); Cantwell v. Conn., 310=20 U.S. 296, 303 = (1940).

^[86] Tex. Const. art. I, =A7=20 6.

^[87] Tilton v. Marshall, 925 = S.W.2d 672,=20 677 n.6 (Tex. 1996) (=93Because Tilton has not argued persuasively for a = different=20 application of the provisions of the First Amendment and Article I, = Section 6 as=20 they pertain to the free exercise of religion, we assume without = deciding that=20 the state and federal free exercise guarantees are coextensive with = respect to=20 his particular claims.=94).

^[88] See, e.g., John = Delaney,=20 Police Power Absolutism and Nullifying the Free Exercise Clause: A = Critique=20 of Oregon v. Smith, 25 Ind. L.=20 Rev. 71 (1991); Douglas Laycock, Formal, Substantive, and=20 Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990); = Douglas=20 Laycock, The Supreme Court=92s Assault on Free Exercise, and the = Amicus Brief=20 that Was Never Filed, 8 J.L. &=20 Religion 99 (1990); Ira C. Lupu, = Employment=20 Division v. Smith and the Decline of Supreme Court-Centrism, 1993 = BYU L. Rev. 259 (1993); = Michael W.=20 McConnell, Free Exercise Revisionism and the Smith = Decision, 57=20 U. Chi. L. Rev. 1109 = (1990); Mark=20 G. Yudof, Religious Liberty in the = Balance, 47=20 SMU L. Rev. 353 = (1994).

^[89] 494 U.S. = 872=20 (1990).

^[90] Id. at 874.

^[91] Id. at 879 (internal = quotation marks=20 omitted).

^[92] Id. at 881-882.

^[93] Id. at 876.

^[94] Id. at 885 (internal = quotation marks=20 omitted).

^[95] 508 U.S. = 520=20 (1993).

^[96] Id. at 524-528.

^[97] Id. at 532.

^[98] Id. at 534.

^[99] Id. at 533.

^[100] Id. at = 534.

^[101] Id. at = 543.

^[102] Id.=20

^[103] Id. at = 545.

^[104] Lukumi, 508 U.S. at 546 (internal = quotation=20 marks, brackets, ellipses, and citation omitted).

^[105] Id. at 557 (Scalia, J., concurring) (citations = omitted).

^[106] Id. at 559-560 (Souter, J., concurring).

^[107] Id. at 560 (emphasis = added).

^[108] Id. at 561-562 (citation and = footnote=20 omitted).

^[109] Id. at 561 (footnote = omitted);=20 cf. Smith, 494 U.S. at 877 (stating that the sacramental = use of=20 wine could not be prohibited, but not discussing whether regulation of = wine use=20 in general would be required to except sacramental use: =93But the = =91exercise of=20 religion=92 often involves not only belief and profession but the = performance of=20 (or abstention from) physical acts: assembling with others for a worship = service, participating in sacramental use of bread and wine, = proselytizing,=20 abstaining from certain foods or certain modes of transportation. It = would be=20 true, we think (though no case of ours has involved the point), that a = State=20 would be =91prohibiting the free exercise [of religion]=92 if it sought = to ban such=20 acts or abstentions only when they are engaged in for religious reasons, = or only=20 because of the religious belief that they display.=94).

^[110] Lukumi, 508 U.S. at 561 = n.2.

^[111] Id. at 565 (quoting = Jimmy Swaggart Ministries v. Bd. of Equalization, = 493 U.S.=20 378, 384-385 (1990), and Hernandez v. Comm=92r,=20 490 U.S. 680, 699 (1989)).

^[112] Id. at = 524.

^[113] Id. at = 580 (Blackmun, J., concurring in the = judgment).

^[114] Brief of Baptist Joint Committee = on Public=20 Affairs and Christian Legal Society as Amici = Curiae in=20 Support of Petitioners 37-38 (by Prof. Douglas Laycock and Eric Cernyar).

^[115] Serbian = E. Orthodox=20 Diocese v. Milivojevich, 426 = U.S. = 696=20 (1976).

^[116] Callahan=20 v. First Congregational Church, 808 N.E.2d 301 = (Mass. 2004); = EEOC v.=20 Roman Catholic Diocese, 213 F.3d 795, 800 & n.* (4th Cir. 2000)=20 (collecting cases); Combs v. Cent. Tex. Annual Conf. of United = Methodist=20 Church, 173 F.3d 343, 346-350 (5th Cir. 1999); EEOC v. Catholic = Univ. of=20 Am., 83 F.3d 455, 461-463 (D.C. Cir. 1996); Simpson v. Wells = Lamont=20 Corp., 494 F.2d 490 (5th Cir. 1974); McClure v. Salvation = Army, 460=20 F.2d 553 (5th Cir. 1972).

^[117] Supra note 60 (citing = Lemon v.=20 Kurtzman, 403 U.S. = 602, 625=20 (1971)) and accompanying text.

^[118] Webster=92s Third New International=20 Dictionary 404, 1473, 2318 (1981)

^[119] Church of the Lukumi Babalu Aye, = Inc. v. City of=20 Hialeah, 508 U.S. = 520, 534=20 (1993).

^[120] Webster=92s Third New International=20 Dictionary 2064 (1981); 14 The=20 Oxford English Dictionary 956 (2d ed. 1989).

^[121] The Canons and Decrees of the Sacred = and=20 Oecumenical Council of Trent 187-192 (J. Waterworth ed. & trans., London, Dolman, = 1848),=20 available at=20 http://history.hanover.edu/texts/trent.html.

^[122] Rosenberger v. Rector & = Visitors of=20 Univ. of Va., 515 U.S. 819, 869 n.1 (1995) (Souter, J., dissenting) (=93While some of these = [=91seminaries=20 of learning=92 which would have been funded under a Virginia tax bill = defeated in=20 1876] undoubtedly would have been religious in character, others would = not have=20 been, as a seminary was generally understood at the time to be =91any = school,=20 academy, college or university, in which young persons are instructed in = the=20 several branches of learning which may qualify them for their future=20 employments.=92 N. Webster, An American = Dictionary of the=20 English Language (1st ed. 1828); see also 14 The Oxford English Dictionary 956 (2d ed. = 1989).=20 Not surprisingly, then, scholars have generally agreed that the bill = would have=20 provided funding for nonreligious schools. See, e.g., Laycock, = =93Nonpreferential=94 Aid to Religion: A False Claim = About=20 Original Intent, 27 Wm. & Mary L. Rev. 875, 897 and n. 108 (1986) = (=91Any=20 taxpayer could refuse to designate a church, with undesignated church = taxes=20 going to a fund for schools. . . . The bill used the phrase = =91seminaries of=20 learning,=92 which almost certainly meant schools generally and not just schools for the training of = ministers=92)=94).

^[123] Supra note 118; Black=92s Law Dictionary 1365 = (7th ed.=20 1999) (defining =93seminary=94 simply as =93an educational institution, = such as a=20 college, academy, or other school=94).

^[124] Tex. Const. art. I, =A7=20 7.

^[125] Church v. Bullock, 109 = S.W. 115,=20 117 (Tex.=20 1908) (emphasis added).

^[126] Tex. Educ. Code =A7 = 56.072.

^[127] Id. =A7 56.075(a) (=93To = be eligible=20 for employment in the work-study program a person must: (1) be a Texas = resident=20 as defined by coordinating board rules; (2) be enrolled for at least = one-half of=20 a full course load and conform to an individual course of study in an = eligible=20 institution; (3) establish financial need in accordance with = coordinating board=20 procedures and rules; and (4) comply with other requirements adopted by = the=20 coordinating board under this subchapter.=94).

^[128] Id. = =A7=20 56.075(b).

^[129] Tex. Educ. Code = =A7 = 61.313(a).

^[130] Church of the Lukumi Babalu Aye, = Inc. v. City of=20 Hialeah, 508 U.S. = 520, 546=20 (1993).

^[131] 15 Pa. Cons. = Stat. =A7 1303; 24 Pa. Cons. Stat. =A7=A7 = 6501, 6507,=20 6508.

^[132] Tex. Educ. Code =A7 61.302(1) = (emphasis=20 added).

^[133] E.g., In re Green, = 221=20 S.W.3d 645, 649 (Tex. 2007) (per curiam) (=93We must of course avoid a construction = of a=20 statute that renders it unconstitutional. See Tex. Gov=92t = Code =A7 = 311.021(1).=94).

^[134] Supra notes = 36-41.

^[135] Supra notes 107-108 = (citing Lukumi, 508 U.S. at 561) and = accompanying=20 text.

^[136] Supra note=20 91 (citing Employment Div. v. Smith, 494 U.S.=20 872, 881-882 (1990)) and accompanying text.

^[137] See Lemon v. Kurtzman, 403 U.S. 602, 625 = (1971).

^[138] Supra note=20 91 (citing Smith, 494 U.S. at 881-882) and = accompanying=20 text.

^[139] Lukumi, 508 U.S. at 546 (internal = quotation=20 marks, brackets, ellipses, and citation omitted).

^[140] Id. at 546 (quoting Smith, 494=20 U.S. at = 888).

^[141] Tex. Educ. Code =A7 = 61.301.

^[142] Brief for = Respondents=20 4.

^[143] = New Jersey State Bd. of Higher Educ. v.=20 Shelton=20 Coll., 448 A.2d 988, 989-991 (N.J. 1982).

^[144] Id. at 989, = 996-997.

^[145] 636 S.W.2d = 706, 707-708,=20 711 (Tenn.=20 1982).

^[146] Op. Tex. Att=92y Gen.=20 No. JC-0200 (2000).

^[147] Id.

^[148] See, e.g., = Commissioners=20 Court of Titus County v. Agan, 940 = S.W.2d 77, 82=20 (Tex. 1997)=20 (=93While Attorney General=92s opinions are persuasive they are not = controlling on=20 the courts.=94).

^[149] Texas Educ.=20 Agency v. Leeper, 893 S.W.2d 432, 446 = (Tex. 1994)=20 (stating that =93by authorizing declaratory judgment actions to construe = the=20 legislative enactments of governmental entities and authorizing awards = of=20 attorney fees, the [Declaratory Judgment Act] necessarily waives = governmental=20 immunity for such awards=94).