Licensing of Nonpublic Institutions

Subject:

Requested By: Mr. Richard H. Robinson, Jr. Assistant to the President General Administration The University of North Carolina

Questions: If an institution of higher education which designates itself as and, in fact, is a "seminary, Bible school, Bible college or similar religious institution," undertakes to offer degree programs not intended to prepare students for pursuit of a religious vocation (e.g., bachelor’s, master’s or doctoral degrees in engineering or business), is such an institution subject to the licensure requirements of N.C.G.S. 116-15 with respect to such secular degree programs, or are all of its degree programs exempt by virtue of N.C.G.S. 116-15(e)?

 

1.  
2. If an institution of higher education that does not designate itself as a "seminary, Bible school, Bible college or similar religious institution" (and which is largely secular) maintains a religious program, such as a school of theology, as an organizational component of the institution for offering instruction leading to a degree in such a religious program, is the institution subject to the licensure provisions of N.C.G.S. 116-15 with respect to such religious program, or is such programs exempt by virtue of the terms of N.C.G.S. 116-15(e)?

    

3. Is the First Amendment offended by State licensure of the secular degree programs of a religious institution of higher education?

    

Conclusions: A religious institution of higher education is subject to the licensure requirements of N.C.G.S. 116-15 only with respect to any secular degree programs it offers.

 

1.  
2. The religious degree programs of an institution of higher education are exempt from the licensure requirements of N.C.G.S. 116-15 by virtue of N.C.G.S. 116-15(e).

    

3. No.

    

Chapter 116 of the General Statutes deals with higher education. It confers upon the Board of Governors of the University of North Carolina the responsibility for planning and developing a coordinated system of higher education for this State. The General Assembly has vested the Board of Governors with this authority in order to improve the quality of education provided the State’s citizens, to extend the benefits of education and to assure economic use of the State’s resources. N.C.G.S. 116-1; N.C.G.S. 116-11(1). To accomplish these purposes, the Board of Governors has been granted, among other powers, expansive authority over the conferral of degrees by both public and nonpublic institutions of higher education. N.C.G.S. 116-11(c) and (6); N.C.G.S. 116-15(a)-(c). The Board’s authority in regard to nonpublic institutions of higher education, is exercised through the issuance, or denial, of a "license to confer degrees." N.C.G.S. 116-15(b). This authority is not unlimited. It is proscribed by the provisions of N.C.G.S. 11615(e) which reads as follows:

"The foregoing provisions of this section shall not apply to any seminary, Bible school, Bible college or similar religious institution."

One institution of higher education presently operating within the State designates itself as a "Bible college" but offers bachelor’s and graduate degrees in several secular areas such as engineering and business. Conversely, another private institution of higher education which does not designate itself as a "seminary, Bible school, Bible college or similar religious institution" and which offers degree programs principally in secular areas, does maintain within its organizational framework a school of theology and offers degrees in theology. The general question for determination here is whether, and to what extent, the degree programs of either of these institutions are exempt from the licensure requirements of N.C.G.S. 116-15 by virtue of the provisions of N.C.G.S. 116-15(e).

Because the applicability of the exemption in N.C.G.S. 116-15(e) to the degree programs of these two institutions is unclear on the face of the statute, reference must be made to the rules of statutory construction. Young v. Whitehall Co., 229 N.C. 360, 49 S.E. 2d 797 (1948). "The cardinal principle of statutory construction is that the intent of the Legislature is controlling." State Fair v. Fulcher, 294 N.C. 503, 520, 243 S.E. 2d 338 (1978). The manifest intent of the General Assembly in vesting the Board of Governors with the authority to license nonpublic institutions of higher education was to assure students enrolled at nonpublic institutions of higher education that the institution had resources sufficient to provide them with an adequate education and to protect the public at large from the fraud of "diploma mills." The intent of the General Assembly in providing an exemption from licensure for a "seminary, Bible school, Bible college or similar religious institution" is likewise manifest, namely, to assure the preservation of the protections of the Free Exercise Clause and the Establishment Clause of the First Amendment to the United States Constitution and the provisions of Article I, Sec. 13 of the North Carolina Constitution.

It may be argued that the literal language of N.C.G.S. 116-15(e) requires exemptions from the licensure requirements on an institutional basis without any regard to the secular or religious basis of the various degree programs of an institution. Such a reading thwarts the dual intent of the Legislature in enacting G.S. 116-15. On the other hand, it frees an institution of higher education ostensibly established solely as a Bible college to offer secular degree programs in areas such as engineering and business without any regulation, to the potential detriment of its students and the public at large. On the other hand, such a reading places the Board of Governors in the position of licensing the religious degree programs of an institution of higher education which does not designate itself as and, in fact, is not a "seminary, Bible school, Bible college or similar religious institution.

Therefore, N.C.G.S. 116-15(e) should not be read literally. "If a strict literal interpretation of the language of the statute contravenes its manifest purpose, the reason and purpose of the law should control and the strict language thereof should be disregarded." IN RE HARDY, 294 N.C. 90, 95, 240 S.E. 2d 367 (1978). See also IN RE BANKS, 295 N.C. 236, 240, 244 S.E. 2d 386 (1978). By reading N.C.G.S. 116-15(e) to base exemptions from the licensure requirements of that statute upon the secular or religious nature of degree programs, rather than the designation or general nature of the institution itself, the dual manifest purposes of G.S. 116-15 are accomplished. It is the opinion of this Office that N.C.G.S. 116-15(e) should be read in accordance with those manifest purposes.

"Where possible, statutes should be given a construction which, when practically applied, will tend to suppress the evil which the Legislature intended to prevent." IN RE HARDY, supra, 294

N.C.

at 96. Reading N.C.G.S. 116-15(e) as exempting an institution which is ostensibly merely a "seminary, Bible school, Bible college or similar religious institution" without any regard for the fact that such an institution may offer degree programs of a clearly secular nature is at direct variance with the very purposes of the General Assembly in enacting G.S. 116-15 and in contravention of the basic rules of statutory construction. Similarly, reading G.S. 116-15(e) as requiring the Board of Governors to license the school of theology of a private institution which is not, and does not purport to be, a "seminary, Bible school, Bible college or similar religious institution" is to "license religion." Such a reading would require a violation of the First Amendment to the United States Constitution and Article I, Sec. 13 of the North Carolina Constitution. "It is well settled that if a statute is reasonably susceptible of two constructions, one of which will raise a serious question as to its constitutionality and the other will avoid such question, the courts should construe the statute so as to avoid the constitutional question." State

v.

Fulcher, supra, 294 N.C. at 520. See also Lynch v. Overholser, 369 U.S. 705 (1962).

To summarize to this point, G.S. 116-15(e) should be read to require the Board of Governors to base exemptions from the licensure requirements of N.C.G.S. 116-15 upon either the religious or secular basis of degree programs offered by an institution rather than upon either the manner in which institution designates itself or the ostensible nature of the institution. Such a reading is consistent with the rules of statutory construction, most particularly the "cardinal principle" of statutory construction that the intent of the General Assembly is controlling.

This conclusion itself raises a constitutional question. Is the First Amendment offered by State licensing of the secular degree programs of a religious institution such as a "seminary, Bible school or Bible College?" The First Amendment to the United States Constitution contains two distinct protections for religion; the Free Exercise Clause which protects the right of the individual to adhere to and practice his own religious beliefs, and the Establishment Clause which requires separation of church and state. Neither of these protections is offended by State regulation of secular degree programs of religious institutions and higher education.

While the protection of the Free Exercise Clause is broad and expansive, that protection is neither absolute nor unlimited. The courts have consistently recognized the State’s authority to act pursuant to the police power, even in areas which effect religious practices. See Reynolds v.

United States, 98 U.S. 145, 25 L.Ed. 244 (1878); Cantwell v. Connecticut, 310 U.S. 296, 84 L.Ed. 1213, 60 S.Ct. 900 (1940); Prince v. Massachusetts, 321 U.S. 158, 88 L.Ed. 645, 64 S.Ct. 438 (1944); and Gillette v. United, 401 U.S. 437, 28 L.Ed. 2d 68, 91 S.Ct. 828 (1971). Indeed, particular deference to this authority is found in the area of education. Since Pierce v. Society of Sisters, 268 U.S. 510, 69 L.Ed. 1070, 45 S.Ct. 571 (1925), a state may, without offending the Free Exercise Clause, "reasonably . . . regulate all schools, inspect them and examine their teachers and pupils. . . ." 269 U.S. at 534. See also, State v. Williams, 253 N.C. 377, 117 S.E. 2d 444 (1960).

Where this regulatory authority has been discussed in the context of religious education, the United States Supreme Court has emphasized the principle that a state has a proper interest in the manner in which religious schools perform their secular educational functions. Board of Education v. Allen, 392 U.S. 236, 20 L.Ed. 2d 1060, 88 S.Ct. 1923 (1968); Wisconsin v. Yoder, 406 U.S. 205, 236, 32 L.Ed. 2d 1526 (1972). As noted in Wolman v. Walter, 433 U.S. 229, 53 L.Ed. 2d 714, 97 S.Ct. 2593 (1977):

"There is no question that the State has a substantial and legitimate interest in insuring that its youth receive adequate secular education. . . ." 433 U.S. 15 240.

Whether state licensure of particular degree programs would unconstitutionally infringe upon the religious freedoms of persons associated with a religious school is largely a question of fact. See United States v. Ballard, 322 U.S. 78, 88 L.Ed. 2d 1148, 44 S.Ct. 882 (1944); Brown v. Dade Christina Schools, Inc., 557 F.2d 310 (5th Cir. 1977), cert. den. 434 U.S. 1063, 55 L.Ed. 2d 763, 78 S.Ct. 1235 (1977). The touchstone for making such determinations was set forth by the Supreme Court in Wisconsin v. Yoder, supra.

"A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claim must be rooted in religious belief. Although a determination of what is a "religious’ belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which a society as a whole has important interests." 406 U.S. at 215-16.

The existence of a violation of the Establishment Clause of the First Amendment is determined on the basis of a three part test which has evolved over time. The three parts of this test are: whether the statute or regulation at issue has a secular purpose; whether its principal effect is one which either advances or inhibits religion; and whether it fosters an "excessive" government entanglement with religion. Wolman v. Walter, supra; Roemer v. Maryland Public Works Board, 427 U.S. 736, 49 L. Ed. 2d 179, 96, S.Ct. 2337 (1976); Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed. 2d 745, 91 S.Ct. 2105 (1971). N.C.G.S. 116-15 obviously has a secular purpose and neither advances nor inhibits religion. Whether state regulations of the secular degree programs of a religious institution causes an "excessive entanglement" between government and religion is a more difficult question. The mere fact, however, that there exists a regulatory relationship between the government and a religious organization does not, of itself, establish an improper entanglement. As the Supreme Court has stated:

"Our prior holdings do not call for a complete separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. . . . (citations omitted). Fire inspections, building and zoning regulations and state requirements under compulsory attendance laws are examples of necessary and permissible contacts." Lemon v. Kurtzman, supra, 403 U.S. at 614.

If state requirements under compulsory attendance laws are "necessary and permissible contacts" not violative of the Establishment Clause, it seems reasonable to conclude that the same result obtains in State regulation of the quality of secular degree programs at religious institutions of higher education. The underlying purpose of both forms of State regulation is the same, to assure that nonpublic institutions undertaking to provide the citizens of a state with a secular education have available resources sufficient to accomplish that purpose.

In sum, neither the Free Exercise Clause nor the Establishment Clause of the First Amendment of the United States Constitution are violated by our State’s licensure of the secular degree programs of a religious institution. It is, of course, possible that the requirements of N.C.G.S. 116-15 could be applied in an unconstitutional manner. To guard against an application of N.C.G.S. 116-15 in violation of the Free Exercise Clause, the Board of Governors should make a case by case determination of whether the degree programs of a religious institution which are apparently secular in nature and purpose do, in fact, have a secular purpose and nature. Similarly, to guard against an application of N.C.G.S. 116-15 in violation of the Free Exercise Clause, the Board of Governors should insure that its contracts with religious institutions are the minimum necessary to insure compliance with the purposes of that statute.

Rufus L. Edmisten Attorney General

Eddie Speas Special Deputy Attorney General