Sept. 4, 2007

Court Upholds Autonomy for Seminaries — Will Decision Help Diploma Mills Too?

The Texas Supreme Court ruled Friday that the state could not require seminaries to meet certain standards as a condition of calling themselves seminaries and awarding certain degrees. The court ruled that the state regulation amounted to a violation of the religious freedom of three seminaries that challenged the regulations.

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“A secular educator’s meat may be a religious educator’s poison, and vice versa. Standards that improve the quality of secular education while impairing sectarian education discriminate against religion,” said the decision.

While the decision was praised by the seminaries, others worry that it will give diploma mills a new way to evade state authority. The regulations in question in Texas — which apply to secular private education as well, and which were not challenged in that regard by the suit or the court — were part of a broad strategy to make it difficult for diploma mills to operate.

The decision means that “any person who creates any church can issue any degree in what sounds like a religious subject,” said Alan Contreras, administrator of the Oregon Office of Degree Authorization, and a leading expert on state regulation of colleges. “Any employer must now assume that unaccredited seminary degrees issued in Texas are diploma-mill degrees unless the school can prove otherwise, and accept the potential liability of hiring such a person.”

But the decision was praised by advocates for seminaries. Kelly Shackelford, chief counsel for the Liberty Legal Institute, which represented the seminaries in the case, issued this statement: “This decision is a huge victory for all seminaries not only in Texas but nationwide. The state has no authority or competence to control the training of pastors and ministers, and the Supreme Court rightly held so.”

State officials said that they were studying the decision and considering their legal options.

The case dates to 1999, when the Tyndale Theological Seminary was fined $173,000 for violating a provision of the Texas Education Code barring institutions from calling themselves a college, university, medical school or seminary and awarding degrees unless the institutions have a “certificate of authority” from the Texas Higher Education Coordinating Board, or are recognized by an approved accrediting agency. The provision in the code applies to all private institutions of higher education, secular and religious. Tyndale has a campus in Fort Worth and also operates in several other states and online. It is a seminary based on the belief in Biblical inerrancy and its degrees are all religious — in Biblical studies, theology, divinity and so forth, from associate degree to Ph.D.

Tyndale sued Texas and was joined in the suit by two other seminaries: the Hispanic Bible Institute and the Southern Bible Institute. All three argued that the state regulation violated their religious freedom. Their suit was narrow in that it did not challenge the use of the regulations with regard to secular institutions or to religious institutions that offer a mix of religious and secular education. The suit applied only to institutions where all education is religious in nature, and the Supreme Court noted in its ruling that its decision was only on that subset of education.

The Texas Supreme Court’s decision — written by Justice Nathan L. Hecht — noted that the requirements institutions must meet to receive a certificate of authority from the state are detailed. They include provisions about faculty qualifications, general education, and the ability of institutions to carry out the stated objectives of the degrees they offer. Institutions are also required to support academic freedom and to have “sufficient distinction” between the roles of boards, administrators and faculty members to assure an appropriate level of “independence” for those who teach at the institutions.

In defending the standards, Texas officials noted repeatedly that none of the rules were specific to religious institutions, and that they were applied equally to all those wishing to offer degrees in the state.

But the Texas Supreme Court rejected that argument. “The fact that subchapter G [the relevant part of the Education Code] burdens all private postsecondary institutions does not lessen its significant, peculiar impact on religious institutions offering religious courses of study,” the court ruled. “Subchapter G requires a clear, public, instantly identifiable differentiation between a religious education that meets the Coordinating Board’s standards and one that does not: only an institution that meets those standards may call itself a seminary and its graduates associates, bachelors, masters, doctors, and the like. But setting standards for a religious education is a religious exercise for which the state lacks not only authority but competence, and those deficits are not erased simply because the state concurrently undertakes to do what it is able to do — set standards for secular educational programs. The state cannot avoid the constitutional impediments to setting substantive standards for religious education by making the standards applicable to all educational institutions, secular and religious.”

The decision also cited several specific parts of the code that the court found to be unconstitutional attempts to tell a religious college how to operate. For example, the court said that the references to academic freedom were inappropriate because they were “inconsistent with a doctrinal statement like Tyndale’s that is at the core of its mission.”

It is also wrong for the state to set requirements for faculty qualifications or force a college to have some general education when regulating seminaries, the court ruled. “It is one thing for the state to require that English majors in a baccalaureate program take science or math courses, that they be taught by professors with master’s degrees from accredited institutions, and that professors have the freedom to teach that the works sometimes attributed to Shakespeare were really written by Edward de Vere, Christopher Marlowe, Francis Bacon, or Queen Elizabeth I,” the court said.

“It is quite another for the state to require that a religious institution’s baccalaureate-level education in religion include psychology courses, or that preaching or evangelism or missions be taught only by professors with master’s degrees instead of practitioners from the field, or that a school’s faculty have the freedom to teach that the Bible was not divinely inspired, contrary to the school’s tenets of faith.”

While no complete dissent was filed in the case, one opinion that was a partial concurrence and a partial dissent took issue with much of the logic of the decision, and found problematic only the regulation of the word “seminary.” This opinion, by Chief Justice Wallace B. Jefferson, said that the decision exaggerated the problems with some state oversight of religious institutions, and noted that the state has some regulatory oversight of religious broadcasters or of clergy who perform marriages — without apparent problems.

The chief justice also noted that the relevant state regulations provide some exceptions whereby an institution might be able to receive recognition if it could show that the only requirements it wasn’t meeting related to matters of faith. Further, he noted that the regulations did not prevent any group from offering any education it wanted, and issuing a statement that a graduate of its program had learned certain things. The only limit was publicly stating that the person had earned a degree, the opinion said.

The chief justice in fact raised questions about whether the ruling in the case amounted to inappropriate favoritism for some religious colleges. “Requiring non-religious higher-education institutes to comply with the accreditation scheme while exempting religious institutions would result in unequal treatment of the two, an impermissible advancement of religion,” he wrote.

“The regulatory oversight at issue here is designed to ensure that all educational institutions — religious and secular alike — comport with minimum educational standards for issuing degrees. Subchapter G governs a secular matter: the creation of a system that recognizes certain types of postsecondary educational achievement. Accreditation signals not the approval of the school’s message, but a certification that the institution meets a variety of educational standards, and any institution — religious or otherwise — may apply for authorization to issue degrees.”

— Scott Jaschik

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