Heb Ministries v. Higher Educ. Coordinating

Decision Date31 August 2007
Docket NumberNo. 03-0995.,03-0995.
Citation235 S.W.3d 627
PartiesHEB MINISTRIES, INC., Southern Bible Institute, and Hispanic Bible Institute, Petitioners, v. TEXAS HIGHER EDUCATION COORDINATING BOARD and Commissioner Raymund Paredes, Respondents.
CourtTexas Supreme Court

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 court of appeals1 and remand the case to the trial court for further proceedings.


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:

(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 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

"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...

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