HEB Ministries, Inc. v. Texas Higher Education Coordinating Board
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HEB MINISTRIES, INC., Southern Bible Institute, and Hispanic Bible Institute, Petitioners,
v.
TEXAS HIGHER EDUCATION COORDINATING BOARD and Commissioner Raymund Paredes, Respondents.
Supreme Court of Texas.
*630 J. Shelby Sharpe, Sharpe & Tillman, P.C., Fort Worth, Raul A. Gonzalez Jr., Law Office of Raul A. Gonzalez, Amalia Rodriguez Mendoza, Travis County District Clerk, Austin, Kelly J. Shackelford, Hiram S. Sasser III, Liberty Legal Institute, Plano, for Petitioner.
Melanie Plowman Sarwal, Weil, Gothshal & Manges LLP, Greg Abbott, Barry Ross McBee, Office of the Attorney General, Jeffrey S. Boyd, Thompson & Knight LLP, Jeffrey L. Rose, Dan Morales, Toni Hunter, Gray & Becker, P.C., Paul Matula, Asst. Atty. Gen., Edward D. Burbach, Office of the Attorney General, Rafael Edward Cruz, Attorney General of Texas, Amy Warr, Alexander Dubose Jones & Townsend, LLP, Austin, Andy Taylor, Andy Taylor and Associates, P.C., Houston, for Respondent.
Douglas Laycock, University of Texas School of Law, Patricia Valdreace Hayes, Austin,
Kathleen Ann Reilly Barrow, Whitaker, Chalk, Swindle & Sawyer, L.L.P., Fort Worth, for amicus curiae Southwestern Baptist Theological Seminary.
Trevor Boyd Hall, Cokinos, Bosien & Young, Arlington, for amicus curiae David Barton.
Trevor Boyd Hall, Cokinos, Bosien & Young, Arlington, for amicus curiae for Wallbuilders.
Patricia Valdreace Hayes, Austin, for amicus curiae Independent Colleges and Universities of Texas, Inc.
Allan E. Parker, Texas Justice Foundation, San Antonio, for amicus curiae David Barton and Wallbuilders, The Indepenent Baptist College and International Bible Center.
James J.S. Johnson, Dallas, for amicus curiae Texas Fellowship of Christian College Professors.
Justice HECHT announced the judgment of the Court and delivered the opinion for the Court with respect to Part I, in which Chief Justice JEFFERSON, Justice O'NEILL, Justice WAINWRIGHT, Justice BRISTER, Justice MEDINA, Justice GREEN, and Justice JOHNSON joined, and with respect to Part III-B, in which Chief Justice JEFFERSON, Justice O'NEILL, Justice BRISTER, Justice MEDINA, and Justice GREEN joined, and an opinion with respect to Parts II, III-A, and III-C, in which Justice O'NEILL, Justice BRISTER, and Justice MEDINA joined.
The State of Texas requires a private post-secondary school to meet prescribed standards before it may call itself a "seminary" or use words like "degree", "associate", "bachelor", "master", and "doctor" or their equivalents to recognize attainment in religious education and training. We must decide whether this requirement impermissibly intrudes upon religious freedom protected by the United States and Texas Constitutions. We hold it does and therefore reverse the judgment of the *631 court of appeals[1] and remand the case to the trial court for further proceedings.
I
A
The State of Texas goes to great lengths to ban "diploma mills" what Webster's Dictionary defines as "institution[s] of higher education operating without supervision of a state or professional agency and granting diplomas which are either fraudulent or because of the lack of proper standards worthless".[2] The Higher Education Coordinating Act of 1965, codified as chapter 61 of the Texas Education Code,[3] states that "the policy and purpose of the State of Texas [are] to prevent deception of the public resulting from the conferring and use of fraudulent or substandard college and university degrees [and] to regulate the use of academic terminology in naming or otherwise designating educational institutions, the advertising, solicitation or representation by educational institutions or their agents, and the maintenance and preservation of essential academic records."[4]
To achieve this purpose, subchapter G of the Act denies a "private post-secondary educational institution"[5] use of certain terminology common to graduate education unless it has a certificate of authority from the Texas Higher Education Coordinating Board.[6] Section 61.313 restricts what an institution can call itself. As originally enacted in 1975, it restricted use of only the terms "college" and "university",[7] but its reach was broadened in 1997 and now states in part:
(a) Unless the institution has been issued a certificate of authority under this subchapter, a person may not:
*632 (1) use the term "college," "university," "seminary," "school of medicine," "medical school," "health science center," "school of law," "law school," or "law center" in the official name or title of a nonexempt private postsecondary educational institution; or
(2) describe an institution using a term listed in Subdivision (1) or a term having a similar meaning.[8]
Section 61.304 restricts the designations of educational attainment an institution may use. In 1998, when the events in this case occurred, section 61.304 stated:
A person may not grant or award a degree on behalf of a private postsecondary educational institution unless the institution has been issued a certificate of authority to grant the degree by the board in accordance with the provisions of this subchapter. A person may not represent that credits earned or granted by that person or institution are applicable for credit toward a degree to be granted by some other person or institution except under conditions and in a manner specified and approved by the board. The board is empowered to specify and regulate the manner, condition, and language used by an institution or person or agents thereof in making known that the person or institution holds a certificate of authority and the interpretation of the significance of such certificate.[9]
Current section 61.302(1) defines "degree" expansively:
"Degree" means any title or designation, mark, abbreviation, appellation, or series of letters or words, including associate, bachelor's, master's, doctor's, and their equivalents, which signifies, purports to, or is generally taken to signify satisfactory completion of the requirements of all or part of a program of study leading to an associate, bachelor's, master's, or doctor's degree or its equivalent.[10]
As section 61.301 explains:
Because degrees and equivalent indicators of educational attainment are used by employers in judging the training of prospective employees, by public and private professional groups in determining *633 qualifications for admission to and continuance of practice, and by the general 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 of college and university educational attainment is in the public interest. To the same end the protection of legitimate institutions and of those holding degrees from them is also in the public interest.[11]
To obtain a certificate of authority,[12] an institution must satisfy the Coordinating Board that it meets standards the Board has adopted.[13] There are 21 at present.[14] In 1998, the standards were substantively similar but numbered 24.[15] According to the Board, its standards "represent generally accepted administrative and academic practices and principles of accredited institutions of higher education in Texas" and "are generally set forth by regional and specialized accrediting bodies."[16] The standards are lengthy, detailed, rigorous, and comprehensive, covering every aspect of an institution's operation. Some are quite explicit, like these:
"Each faculty member teaching in an academic associate or baccalaureate level degree program shall have at least a master's degree from an institution accredited by a recognized agency or a regional accrediting agency with at least 18 graduate semester credit hours in the discipline being taught. Furthermore, at least 25% of course work in an academic associate or baccalaureate level major shall be taught by faculty members holding doctorates, or other terminal degrees, in the discipline being taught from institutions accredited by a recognized agency or a regional accrediting agency. . . . Graduate level degree programs shall be taught by faculty holding doctorates, or other terminal degrees, in the discipline being taught from institutions accredited by a recognized agency or a regional accrediting agency."[17]
*634 "Each associate or baccalaureate degree program shall contain a general education component consisting of at least 25% of the total hours offered for the program. This component shall be drawn from each of the following areas: Humanities and Fine Arts, Social and Behavioral Sciences, and Natural Sciences and Mathematics."[18]
Other standards leave much to the Coordinating Board's discretion to determine compliance:
"The character, education, and experience in higher education of governing board members, administrators, supervisors, counselors, agents, and other institutional officers shall be such as may reasonably ensure that the students will receive education consistent with the objectives of the course or program of study."[19]
"There shall be sufficient distinction among the roles and personnel of the governing board of the institution, the administration, and faculty to ensure their appropriate separation and independence."[20]
"The character, education, and experience in higher education of the faculty 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."[21]
"There shall be a sufficient number of full-time teaching faculty resident and accessible to ensure continuity and stability of the education program, adequate educational association between students and faculty and among the faculty members, and adequate opportunity for proper preparation for instruction and professional growth by faculty members."[22]
"The quality, content, and sequence of each course, curriculum, or program of instruction, training, or study shall be appropriate to the purpose of the institution and shall be such that the institution may reasonably and adequately achieve the stated objectives of the course or program."[23]
"The institution shall have adequate space, equipment, [and] instructional *635 materials to provide education of good quality."[24]
"The institution shall have adequate financial resources and financial stability to provide education of good quality and to be able to fulfill its commitments to students."[25]
"The institution shall adopt and distribute to all members of the faculty a statement of academic freedom assuring freedom in teaching, research, and publication."[26]
A certificate of authority is valid for two years,[27] and an institution must apply for renewal 180 days before the certificate expires.[28] A certificate can be renewed for only eight years, by which time the institution must obtain full accreditation.[29]
An institution is exempt from subchapter G if it is fully accredited by a "recognized accrediting agency" designated by the Coordinating Board.[30] In 1998, the Board had designated only three accrediting agencies, two of which were specifically oriented toward religious institutions.[31] Since then, four others have been added, none with a religious focus.[32] Although no recognized accrediting agency's standards are included in the record, for Board recognition, an accrediting agency's standards "must be at least as comprehensive and rigorous as [the Board's standards for a certificate of authority] and be as rigorously applied."[33] An exempt institution may, *636 and according to the Board should, obtain a certificate of authorization,[34] which is not to be confused with a certificate of authority.[35]
In sum, with a few exceptions, none material to this case, subchapter G of the Act requires that a private post-secondary institution either have Board-approved accreditation or satisfy Board-adopted standards before it can describe itself and its students' attainments with words commonly used for those purposes by such institutions. A violation is a Class A misdemeanor,[36] may be investigated and enjoined by the Attorney General,[37] is punishable by a civil penalty of $1,000 per day[38] and an administrative penalty of $1,000-5,000 per offense[39] imposed by the Commissioner of Higher Education, the Board's executive officer,[40] and is a false, misleading, or deceptive *637 act or practice actionable under the Texas Deceptive Trade Practices-Consumer Protection Act.[41]
B
The parties have stipulated to all the facts.
Petitioner HEB Ministries, Inc., a church in Fort Worth,[42] operates a school, Tyndale Theological Seminary and Bible Institute, which was founded in the early 1990s to offer a biblical education in preparation for ministry in churches and missions. By 1999, its campus consisted of a library, four or five classrooms, administrative offices, a small bookstore, and a computer department, and its enrollment was 300-350 students, with over three-fourths in correspondence courses. Tyndale is a "private postsecondary educational institution" as defined by subchapter G.
Tyndale's 1997-1998 course catalog stated:
At TYNDALE our focus is upon you the professional minister or motivated layman who wishes to make a difference for Christ in our world. You are the most important part of the TYNDALE equation. Our job is to meet your needs to meet you half-way with quality Bible courses that help you in your ministry endeavor.
The catalog also contained a lengthy "Doctrinal Statement" setting out Tyndale's positions on issues of faith.[43] The catalog listed 172 courses, 162 of which were in religious subjects. Of the other ten, three were in general education "Basic English Grammar & Composition", "Read, Research & Study Basics", and "Ancient World History" and seven were in typing, word processing, and use of the Internet, offered by the "Department of Theological and Biblical Research". The catalog offered 20 "diplomas", all in religious subjects.[44]
*638 Tyndale's catalog offered no "diploma" in any secular subject and no "degree" of any kind, but it characterized programs of study required for a diploma as equivalent to programs of study required for a degree at the same level. For example, the catalog referred to its "Diploma Of Theological Studies" program as a "bachelor equivalent program" and "bachelor equivalent course of studies", and the "Master of Arts Level Diploma" in "Counseling" as a "Masters Level Program".[45]
The course catalog did not state that Tyndale's diplomas were the equivalent of college degrees, but neither did it state that they were not; it was silent on the subject. The catalog stated that Tyndale and Louisiana Baptist Theological Seminary were "going forward with parallel programs [in prophetic studies] and exchange of credits between the two institutions", but did not otherwise say that Tyndale academic credits could be applied toward earning degrees.
In 1998, Tyndale had never been accredited by an agency recognized by the Coordinating Board and had never obtained a certificate of authority from the Board. Tyndale never sought accreditation or a certificate of authority for what it describes as "doctrinal reasons". In its 1997-1998 course catalog, Tyndale described its position on accreditation as follows:
Many seminaries are on shifting sands. They feel they must impress the world or the culture with their intellectualism. Thus, some schools are spending large sums of money on appearance and are no longer focusing on the substance strong theology, solid Bible courses, practical language exegesis, etc.
What validates TYNDALE? TYNDALE believes it is affirmed by its Board of Advisors, Board of Governors, the students attending and, the world-class Guest Faculty who give our students the best of academics and the greatest training in the spiritual message of the Scriptures. But again, many schools seek RECOGNITION and AFFIRMATION from the state, from secular associations or professional groups that really have no business meddling in biblical matters.
The approach of many seminaries and Bible schools is obsolete and antiquated. They are still trying to be, as they call it, "traditional" schools. But mainly, they simply try to keep up with the Joneses. They attempt to look and act like secular universities. But in reality, a school like TYNDALE, and other schools with our convictions, are the ones that are traditional, not the other way around.
For example, in the 1960s, most Christian schools were not accredited, nor did the best want to be. They were satisfied with serving the Lord by being complete and whole within their framework and calling. As well, a student could get the best education at these institutions and know he had not been compromised with the culture. But in the 1970s, a push was on for state approval and accreditation. "We want state and federal government approval. We want the world to like us?" [sic] Did any of this have anything to do with the quality or teaching message of those *639 schools? It did not! When one of the big seminaries became accredited in the 1970s, almost all of the older faculty and all of the graduates testify that the school went down hill not in a certain secular quality manner, but in its message and commitment to truth and the Gospel.
One of the largest Christian Universities in America has said, "We will not become accredited!" That school today is highly respected and other schools want their graduates. Accreditation or lack of it has not had anything to do with the school's quality or mission.
At commencement exercises on June 26, 1998, Tyndale recognized graduates with 34 awards, listed in the program with titles as follows:
"Certificate of Biblical Studies (Cert. BS)" two;
"Diploma of Basic Biblical Studies (Dip. BBS)" three;
"Associate of Biblical Studies (ABS)" one;
"Diploma of Advanced Biblical Studies (Dip. ABS)" one;
"Bachelor Level Diploma in Biblical Studies (BBS)" two;
"Bachelor Level Diploma in Theological Studies (Dip. Th.S.)" six;
"Diploma of Christian Studies (DCS)" two;
"Master of Arts (MA)" nine;
"Master of Theology (Th.M.) two;
"Doctor of Ministries (D.Min)" one;
"Doctor of Theology (Th.D)" two;
"Doctor of Philosophy (Ph.D)" three.
The record contains a copy of only one of the award certificates. It read:Tyndale Theological Seminary Fort Worth, Texas To Whom it may concern [recipient's name] Has completed satisfactorily the course of Theological studies offered by the faculty of this institution and is entitled to the following diploma: The aequus Master of Arts Level Diploma And the same is hereby conferred by the authority of the board and faculty as recommended by the president. June 26, 1998
In conferring these awards, Tyndale did not use the word "degree". Nevertheless, the Commissioner of Higher Education sent Tyndale a letter dated July 22, 1998, which stated:
As you know, the Texas Education Code, Chapter 61, Subchapter G, requires an institution to have a certificate of authority to grant degrees, credits applicable to degrees, or to use specific academic terminology. I have determined that Tyndale Theological Seminary & Biblical Institute is violating this statute. Under Section 61.316, the Commissioner must assess penalties for violations. Those penalties may range from $1,000 to $3,000 for use of a protected term in the institution's name and from $1,000 to $5,000 for awarding or offering to award degrees. Each degree awarded or offered constitutes a separate offense.
From the evidence we possess, I conclude the following:
Tyndale meets the definition of a private postsecondary institution in Texas as found in § 61.302(2);
Tyndale was informed that the law requires it must hold a certificate of authority from the Coordinating Board to grant degrees, grant credits *640 applicable to degrees, or use protected terminology in a letter from the Coordinating Board dated September 16, 1991;
On or about June 26, 1998, Tyndale awarded six undergraduate certificates (consisting of courses alleged to be applicable to degrees), one associate degree, eight bachelor's degrees, two diplomas of Christian Studies (accepted as a baccalaureate equivalent for admission to your master's programs), eleven master's degrees, and six doctoral degrees for a total of 34 degrees; and
Tyndale is using the protected term "seminary" in its name.
Therefore, I am assessing an administrative penalty of $173,000, consisting of 34 violations of granting a degree without authority at $5,000 each and one violation of using a protected term at $3,000.
You have twenty (20) days from the date of receipt of this letter to either pay the penalty or appeal the decision. . . .
Also, you must immediately cease your actions in violation of state law. You must contact us within twenty days of the receipt of this letter with your plans to correct your actions. At minimum those plans must include the following: you must (1) cease using the term "seminary," or any other protected term, in the name of your institution; (2) cease awarding or offering to award degrees; (3) cease offering credit towards degrees; (4) inform your graduates, students, and potential students by letter that you have no degree granting authority; and (5) offer by letter full refunds to all graduates and students. The content of the letter informing your students of your status and the offer of refunds must be submitted to the Coordinating Board for approval prior to its distribution. Failure to contact us with your plans to correct your actions will result in our referring this matter to the Office of the Attorney General for injunctive and any other relief allowed by law.
C
Tyndale did not appeal the Board's decision.[46] Instead, HEB Ministries sued the Coordinating Board, the Commissioner, and the Attorney General for a declaratory judgment that sections 61.304[47] and 61.313(a), as applied to a school like Tyndale, violate the Establishment Clause and Free Exercise Clause of the First Amendment to the United States Constitution as well as article I, section 6 of the Texas Constitution.[48] HEB Ministries also sought attorney fees. The Coordinating Board and the Commissioner counterclaimed for collection of the previously assessed $173,000 administrative penalty, an injunction prohibiting HEB Ministries *641 from engaging in the conduct for which it had been sanctioned, and attorney fees.
At some point, two other institutions intervened as plaintiffs. One, Southern Bible Institute, describes itself as "a postsecondary religious educational institution in Dallas, Texas . . . founded for the purpose of preparing disadvantaged African-American men for the gospel ministry." The other, Hispanic Bible Institute, states that it is "a post-secondary religious educational institution in San Antonio, Texas", and that "[t]he educational offerings of this ministry are theology, church and pastoral ministry, and general studies." The record contains no other information about the intervenors.
Both sides moved for summary judgment. In their motion, the plaintiffs (including the intervenors) argued, in addition to the allegations in HEB Ministries' petition, that sections 61.304 and 61.313 also violate the First Amendment's Free Speech Clause[49] and article I, section 8 of the Texas Constitution.[50] The defendants did not object to this additional claim and addressed it in their response. The trial court held that section 61.313's regulation of the word "seminary" violates the First Amendment and article I, sections 6 and 8 of the Texas Constitution. In all other respects, the trial court granted summary judgment for the defendants. It ordered HEB Ministries to pay the State $170,000, the penalty assessed for granting 34 degrees, and ordered the plaintiffs to pay $34,781 in attorney fees. The court also enjoined HEB Ministries from awarding degrees, as defined in Subchapter G, or representing that Tyndale's educational credits would be applied toward a degree at another institution, until it obtained a certificate of authority from the Coordinating Board.
The court of appeals held that neither 61.304 nor 61.313 violates the First Amendment or article I, sections 6 and 8 of the Texas Constitution. Thus, it reinstated the $3,000 administrative penalty against HEB Ministries for Tyndale's use of "seminary", and upheld the $170,000 administrative penalty for granting degrees. The court remanded the case for entry of a permanent injunction consistent with its opinion.[51]
We granted the plaintiffs' petition for review.[52] Petitioners, to whom we shall refer collectively as "HEB Ministries", contend that the Establishment and Free Exercise Clauses of the First Amendment and corresponding state constitutional provisions preclude the State from requiring a post-secondary school with a religious mission to meet specified standards for its operation and curriculum before it can call itself a "seminary" or use words like "associate", "bachelor's", "master's", and "doctor's" to mark student attainment in religious education and training. HEB Ministries does not challenge the State's authority to impose such standards on secular institutions and on religious institutions offering a secular education. Nor does HEB Ministries contend that the State cannot regulate use of the word "degree". It contends only that the State *642 cannot deny the use of such higher education terminology to religious schools that do not meet its standards. Respondents, the Coordinating Board and the Commissioner (collectively "the Coordinating Board"),[53] insist that sections 61.304 and 61.313(a) are constitutionally sound because they are part of a neutral law that is secular in purpose and generally applicable to all institutions of higher education, and that only incidentally impacts institutions offering religious instruction. The Coordinating Board argues that use of the statutorily restricted words is unimportant to the religious mission of a school like Tyndale when there are other words it can use to describe itself and its students' attainment.
HEB Ministries also contends that sections 61.304 and 61.313(a) violate the Free Speech Clause of the First Amendment and corresponding state constitutional provisions. The separate opinions find it necessary to reach this issue, but we do not.
II
The Establishment Clause prohibits any "law respecting an establishment of religion".[54] Correspondingly, article I, section 6 of the Texas Constitution states that "no preference shall ever be given by law to any religious society".[55] We have referred to this provision and article I, section 7 as "Texas' equivalent of the Establishment Clause."[56] The parties do not argue that there is any difference in the application of these federal and state constitutional provisions to this case, and we will assume for present purposes that they are coextensive.[57]
Fundamentally, "[t]he `establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another."[58] Since the government cannot determine what a church should be, it cannot determine the qualifications a cleric should have or *643 whether a particular person has them.[59] Likewise, the government cannot set standards for religious education or training.[60] As the United States Supreme Court said long ago in Watson v. Jones:
The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine . . . is unquestioned.[61]
That said, the Supreme Court has also written:
A system of government that makes itself felt as pervasively as ours could hardly be expected never to cross paths with the church. In fact, our State and Federal Governments impose certain burdens upon, and impart certain benefits to, virtually all our activities, and religious activity is not an exception. The Court has enforced a scrupulous neutrality by the State, as among religions, and also as between religious and other activities, but a hermetic separation of the two is an impossibility it has never required. . . .
Neutrality is what is required. The State must confine itself to secular objectives, and neither advance nor impede religious activity.[62]
The Coordinating Board asserts that subchapter G meets this requirement of neutrality. Though the statute regulates religious education, it does so, the Board argues, only incidentally in pursuit of its secular objective of regulating all post-secondary educational institutions generally, irrespective of whether their programs are secular or religious. In the sense that subchapter G applies to institutions across the board, we agree that it is neutral; that is, it does not single out religious programs for special treatment. But the fact that subchapter G burdens all private post-secondary institutions does not lessen its significant, peculiar impact on religious institutions offering religious courses of study. 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,[63] 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 *644 the standards applicable to all educational institutions, secular and religious.[64]
Subchapter G expresses a preference for one manner of religious education over another. The religious school that chooses to educate in the manner of secular schools may use education terminology with the State's approval. Other religious schools cannot. The Coordinating Board's standards we have set out above, adopted as authorized by subchapter G, require "academic freedom" and faculty "independence" inconsistent with a doctrinal statement like Tyndale's that is at the core of its mission. Those standards set minimum faculty qualifications and require that one-fourth of the hours required for graduation from a baccalaureate program be in each of three groups: the humanities and fine arts, the social and behavioral sciences, and the natural sciences and mathematics. The standards also give the Board wide discretion to determine the adequacy of an institution's operations and curriculum. An accrediting agency's standards must be at least as comprehensive and rigorous for the agency to receive recognition by the Board. Such standards, prescribing as they do a detailed model for any institution offering postsecondary education, can hardly be said to impact religious institutions offering religious instruction incidentally. Subchapter G does not target religious institutions, but it directly and substantively impacts them by impeding their ability to describe themselves or their students' religious educational attainment.
HEB Ministries does not argue that the Coordinating Board's standards offend constitutional protections when applied to secular educational programs, even if provided by religious institutions, and we need not consider that issue. HEB Ministries argues only that it is constitutionally impermissible for the State to require an indication of its preference for one manner of religious education over another. HEB Ministries' course offerings are almost exclusively in religious subjects 162 out of 172 and the ten general education courses available are offered only to supplement religious training. HEB Ministries offers no secular program of study. Its academic awards are all in religious studies, and the only certificate in our record clearly denotes this by stating that it is given for satisfactory completion of a "course of Theological studies". 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. 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. As the United States Supreme Court has observed,
training for religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional *645 theology is akin to a religious calling as well as an academic pursuit.[65]
The Coordinating Board acknowledges that the State cannot control religious education and training and insists that subchapter G does not do so. Compliance is voluntary. Any institution is free to choose to operate without a certificate of authority from the Coordinating Board or accreditation from a recognized agency as long as it does not use restricted terminology. But subchapter G cannot avoid the Establishment Clause merely because it allows institutions a degree of choice.[66] The issue is whether it operates to prefer one kind of religious instruction over another. By restricting the terminology a religious institution can use, the State signals its approval or disapproval of the institution's operation and curriculum as vividly as if it hung the state seal on the institution's front door. A "seminary" teaches religion the way the State of Texas approves. A program or award in religious studies described as being at an associate, bachelor's, master's, or doctor's level, or anything equivalent, has the State's approval. All others do not.
As Tyndale explained in its course catalog, views vary on how post-secondary religious instruction should be provided. For some, the secular education model is preferred, with programs structured like those of any liberal arts school, and accreditation, though expensive, is affordable. For others, religious instruction is more insular, steeped in the doctrine and experience of a specific faith, and limited resources practically preclude obtaining accreditation.[67] The Coordinating Board admits that subchapter G takes sides in this debate, but insists that subchapter G does so only incidentally as part of its overall regulation of private post-secondary education. We disagree that the State's expression of a preference for how religion should be taught can fairly be characterized as incidental. "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another."[68] The Texas Constitution expressly prohibits such a preference. By limiting the educational terminology a religious institution may use without the approval of the Coordinating Board, subchapter G prefers one course of religious instruction over another.
*646 The Coordinating Board argues that subchapter G's standards are no different than sanitation standards a state might set for churches butchering meat to religious specifications. A state in such circumstances need not interfere with religious beliefs and practices to ensure that food is minimally safe for human consumption, and it cannot interfere in religious requirements when health is no longer an issue. Thus, government standards for determining that food is not only safe but kosher a religious requirement only partly concerned with health would involve an impermissible state preference among religious views.[69] As one court has written, a law that allows a state agency to determine whether food is kosher impermissibly "take[s] sides in a religious matter," even if the purpose of the law is to prevent fraud in the marketing of food.[70] Subchapter G helps prevent harm to students by requiring that educational institutions be financially responsible[71] and candid about their operations.[72] But the State's legitimate concern for student safety does not authorize it to take sides in the religious debate over how religion should be taught by setting substantive standards for religious educational curriculum and process. We have upheld regulations protecting the health, safety, and well-being of students in daycare facilities.[73] Subchapter G is much different.
We think sections 61.304 and 61.313(a) clearly effectuate a state preference for one model of religious education over others, a preference that the Establishment Clause simply does not permit. We are mindful, however, that
[t]he Supreme Court has rejected any absolute approach in applying the Establishment Clause. At times it has relied on the principles enunciated in Lemon v. Kurtzman[[74]] . . . to guide it through this "extraordinarily sensitive area of constitutional law." Under Lemon, a government practice is constitutional if: (1) it has a secular purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not excessively entangle the government with religion.[75]
In our view, the statutory provisions at issue do not pass this test.
There is nothing to suggest that either the Legislature in enacting subchapter G or the Coordinating Board in enforcing it intended any purpose other than the secular one of maintaining high standards for post-secondary education to protect legitimate institutions and their graduates and prevent public deception by "diploma mills", even though the distinct impact on *647 religious instruction is apparent. Nor can we say that the principal or primary effect of subchapter G is to advance or inhibit religion, although as we have explained at length, a substantial effect of the statute is to indicate the State's preference for postsecondary religious instruction that meets the Board's standards. But it is fair to say that a principal or primary effect is to advance religious education the State approves and inhibit what it does not. We think it beyond serious dispute that the statute clearly and excessively entangles the government in matters of religious instruction. The Board's standards, and those of recognized accrediting agencies, cannot be applied without a thorough, detailed, and repeated examination of an institution's operations and curriculum. Without such an examination, the Board could not determine, as it says it must, whether, for example, "[t]he character, education, and experience in higher education of the faculty 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."[76] This is but one of more than a score of standards the institution must meet to obtain approval and access to restricted terminology. And it must demonstrate its compliance every two years until it obtains full accreditation from a recognized agency, which, as we have noted, is considered by the Coordinating Board to be at least as rigorous an exercise as compliance with the Board's standards.
It is true, as the Coordinating Board argues, that an institution may choose not to burden itself with state standards, but that option does not disentangle the State from religious matters. The choice, which every institution must make, determines whether the institution may use restricted terminology, indicating that its programs have state approval. It is this expression of approval or lack of approval of religious instruction that entangles the State in religion.
Several Justices of the Supreme Court have criticized the Lemon test,[77] and while we are not at liberty to take criticism for rejection, from our vantage point, the Court seems over time to have become "particularly attuned to whether the challenged government practice purposefully or effectively `endorses' religion, an inquiry courts generally consider a component of the Lemon test's first and second parts."[78] As we have explained, subchapter G clearly expresses the State's endorsement of particular religious education *648 by allowing institutions that meet its standards to use restricted terminology. A "seminary" is a state-endorsed school, and a "bachelor's" diploma a state-endorsed award. The State's imprimatur is unmistakable.
We are aware of only one other court that has considered whether state regulation of postsecondary religious education conflicts with the Establishment Clause. In New Jersey State Board of Higher Education v. Shelton College, the New Jersey Supreme Court upheld that state's regulation against an Establishment Clause challenge.[79] But the school in that case, Shelton College, offered secular as well as religious programs, including elementary education, secondary education, English, history, business management, music education, and natural science.[80] And the court's reasoning illustrates the significant differences between the level of regulation involved in that case and this one:
The Establishment Clause permits minor, unobtrusive state supervision of religiously oriented schools. Only excessive entanglement is proscribed. None of the education statutes or regulations here in question mandates "active involvement of the sovereign in religious activity." None authorizes state regulation of the content of an educational program. Nor does the regulatory scheme on its face require "comprehensive, discriminating and continuing state surveillance." Although the regulations in this area appear to be burdensome, especially as applied to a college of approximately 30 students, they explicitly call for flexibility in their administration so as to accommodate various institutions with diverse educational goals. Because Shelton College declined even to complete the licensing process, the allegation of excessive entanglement rests on speculation about the manner in which these statutes and regulations might be applied. Although one could imagine an unconstitutional application of this regulatory scheme, we are confident that the Board of Higher Education will pursue the least restrictive means to achieve the State's overriding concerns. Of course, should the Board exercise its discretion in a manner that unnecessarily intrudes into Shelton's religious affairs, the college would then be free to challenge the constitutionality of such action. At this juncture, however, we need not invalidate these statutes merely because they may be amenable to an unconstitutional application.[81]
Subchapter G's certification process is certainly not minor or unobtrusive; it is, the Coordinating Board insists, "comprehensive and rigorous".[82] The statute prohibits an institution from using common terminology if the sovereign is not actively involved in the institution's religious education. State examination extends to content and presentation. There is no special provision for religious instruction, and not only is the Board given no discretion to treat such education differently than secular education, it has given no indication that it would be willing to do so if it could.[83] We need not speculate what process *649 Tyndale would have been required to follow to obtain certification; the demands of the Board's standards are perfectly clear. These are not the circumstances described in Shelton College, and had they been, we think from what the court said there, it would have reached the same result we do in the present case.
"The purpose of the Establishment Clause is to protect against state `sponsorship . . . and active involvement' in religious activity."[84] Here, the religious activity is offering religious instruction and recognizing attainment with certificates clearly reflecting that such instruction is religious. We do not address what restrictions may be imposed on religious institutions that offer a secular education or award diplomas or other certificates for courses of study not clearly denominated as religious. It is hard to imagine a more active involvement in religious training than by determining whether it meets the comprehensive standards set by the Coordinating Board, and equally hard to imagine a more direct state sponsorship of religious education than by indicating in every institution's name and on every academic award whether the State approves the programs of study. We therefore hold that sections 61.304 and 61.313(a) violate the Establishment Clause and article I, section 6 of the Texas Constitution as applied to a religious institution's programs of religious instruction.
III
A
The First Amendment also forbids any "law . . . prohibiting the free exercise" of religion.[85] Likewise, article I, section 6 of the Texas Constitution states:
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the ri