Untitled Texas Attorney General Opinion ( 1975 )

January 30, 1975
The Honorable Jack K. Williams Opinion No. H- 511
President
Texas A&M University Re: Whether use of physical
College Station, Texas 77843 facilities of state university
by church affiliated student
organization would violate
the U.S. and Texas Constitu-
tions .
Dear Dr. Williams:
You have asked our opinion on the legality of the university’s
recognition of various ch~urch affiliated student organizations and of
permitting them the same use of university facilities permitted other
recognized student organizations, including the rent-free use of meeting
rooms and auditoriums. We understand that religiously oriented organi-
zations would constitute only a small percentage of the total number of
student clubs recognized by the university.
The First Amendment to the United States Constitution which
applies to the states by virtue of the Fourteenth Amendment provides
in part that:
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof . . . .
In examining governmental enactments against the backdrop of
the constitutional language, the Supreme Court has .developed a four .,,
point test which must be considered. The ‘Guestions which. must be
considered are:
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The Honorable Jack K. Williams, page 2 (H-511)
First, does the Act reflect a secular legislative
purpose? Second, is the primary effect of the Act ’
to advance or inhibit religion? Third, does the
administration of the Act foster an excessive govern-
ment entanglement with religion? Fourth, does the
implementation of the Act inhibit the free exercise
of religion?
Tilton v. Richardson, 403 U.S. 672, 678 (1971). See also Hunt v. McNair.
413 U.S. 734 (1973); Committee for Public Education v. Nyquist. 413 U.S.
756 (1973); Attorney General Opinions H-203 (1974). H-66 (1973). Letter
Advisory No. 47 (1973).
We are not prepared to conclude that theme uniitersity’s policy of recqgniz-
ing student clubs, including some religiously-oriented clubs, does not have
a secular purpose of encouraging students to meet to discuss ideas and
pursue goals of common interest and promote the secular purpose of
establishing a pluralistic community. See Walt V. Tax Commission, 397
U.S. 664 (1970) (Brennan, concurring);zyishian v. Board of Regents
of New York, 385 U.S. 589 (1967).
Neither are we convinced that the university’s policy of recogniz-
ing student clubs, including some religiously-oriented clubs, would have
the primary effect of advancing or hindering religion. The primary effect
appears to be to encourage the interchange of ideas by all types of groups
of which religious organizations constitute only a small portion. See Allen
--
v. Morton, 495 F.2d 65 (D.C. Cir. 1973).
Nor can we say that the entanglement test is violated. We understand
that recognition of an organization operates as an essentially non-discretionary
act and that use of facilities by these groups is handled on a “resermtion,
first come, first served” basis. Greater entanglement problems might
be pre~sented if the school denied use of its facilities to religious groups and
was required to ascertain a group’s purposes and monitor its activities.
Walz v. Tax Commission, 397 U.S. 664 (1970); E,‘Healy v.. James. 408
U.S. 169 (1972).
There is an internal tension in the First Amendment between the
establishment clause and the free exercise clause., Tilton v. Richardson,
403 U.S. 672 (1971). The Supreme Court has held denials of licenses for
p. 2302
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The Honorable Jack K. Williams p. 3 (H-511)
use of public parks for religious services to be invalid as a denial of equal
protectioh in the exercise of freedom of religion. Fowler v. Rhode Island,
345 U.S. 67 (1953); Kunz v. New York,, 340 U.S. 290 (1951); Niemotko v.
Maryland, 340 U.S. 268 (1951). Although it did not discuss the relation
between the establishment and free exercise clauses, the Supreme Court
did not question the use of public parks and streets for religious purposes
and did rely on the denial of the right of free ‘exercise of religion. If, as
we understand, use of university facilities by student religious orgati.za-
tions is on the same basis as those facilities are used by other student.
clubs and there is no university policy or action to encourage attendance,
we believe any problems concerning denial of the free exercise of religion
can be avoided. See Stacy v. Williams, 306 F. Supp. 963 (N.D. Miss.
1969) (3-judge court).
Of course even protected activities are subject to reasonable regula-
tions respecting the time, place and manner of their exercise. Cantwell v.
Connecticut, 310 U.S. 296 (1940). The university can and should, however,
condition the use of its facilities by student religious groups in the same
manner as it does with non-religious groups. Healy v. James, 408 U.S.
169 (1972).
In addition to satisfying the requirements of the First Amendment
to the United States Constitution, any progra,m of recognizing student
religious groups is subject tothe limitations of article 1, section 7 of the
Texas Constitution that:
No money shall be appropriated, or drawn from the
Treasury for the benefit of any sect, or religious
society, theological or religious seminary; nor
shall property belonging to the State be appropriated
for any such purposes.
It has been held in a long and well researched opinion that a school
building may be rented to a religious group during non-school hours.
Attorney General Opinion O-5354 (1943). And see Pratt v. Arizona Board
of Regents, 520 P. 2d 514 (Ariz. 1974). Webelieve that, when.use of a
small portion of a building by a religious group is permitted as aapart of
,.
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The Honorable Jack K. Williams p. 4 (H-511)
a larger student-club program which the university has determined is an
important part of its overall educational function, such use could not be
correctly termed the “appropriation” of property belonging to the State
for religious purposes within the intent and contemplation of article 1,
section 7 of the Texas Constitution.
Even though there is some expenditure of state funds for utilities
and maintenance occasioned by the student group’s use of a meeting room,
we believe the amount is normally so small as to be insignificant. As the
Florida Supreme Court said in relation to a similar situation under a
similar constitutional provision:
We think, however, that it is totally unnecessary
to become involved in any prolonged discussion of the
applicability of the separation of Church and State
principle. In regard to the Florida Constitutional
prohibition against contributing public funds in aid of
any religious denomination, we find nothing in this
record to support a conclusion that any public funds
have been contributed. Taking note of appellant’s
insistence that the use of the building is something
of value and that the wear and tear is an indirect
contribution from the public treasury, it appears to
us that we might here properly apply the maxim
“De minimis non curat lex. ” Nothing of substantial
consequence is shown and we see no reason to burden
this opinion with a discussion of trivia.
Southside Estates Baptist Church v. Board of Trustees, 115 So. 2d
697, 699 (Fla. 1959).
”
Your question is narrow, and we have limited our answe; solely to
the question raised. We do not pass on any possible action or fact situation
which might go beyond the scope of the question presented here.
SUMMARY
\ /
Where a university provides meeting rooms
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p, 2304
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The Honorable Jack K. Williams, page 5 (H-511)
for student groups, including some religiously-oriented
groups, as part of a broad-based student club program,
it is not precluded from so permitting the use of meeting
rooms and auditoriums on a non-discretionary, first
come-first served basis where there is no university
policy or action to encourage attendance.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH. Chairman
Opinion Committee
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