Institute for Creation Research Graduate School v. Texas Higher Education Coordinating Board et al

Filing 62

ORDER DISMISSING as moot #34 Motion to Strike; DISMISSING as moot #51 Motion for scheduling relief; DENYING #53 Motion for Summary Judgment; GRANTING #54 Motion for Summary Judgment. Signed by Judge Sam Sparks. (mc2, )

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS A U S T IN DIVISION

IN S T IT U T E FOR CREATION FOR RESEARCH G R A D U A T E SCHOOL, P l a in t i f f , -v sTEXAS HIGHER EDUCATION C O O R D IN A T IN G BOARD, COMMISSIONER R A Y M U N D PAREDES, LYN BRACEWELL P H I L L I P S , JOE B. HIN T O N , ELAINE M E N D O Z A , LAURIE BRICKER, A.W. "WHIT" R IT E R , III, BRENDA PEJOBICH, and ROBERT SH EPA R D , D ef en d an ts. _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ C a se No. A-09-CA-382-SS

ORDER

B E IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, sp ecifically Plaintiff the Institute for Creation Research Graduate School ("ICRGS")'s Motion to Strike [ # 3 4 ]; ICRGS's Unopposed Motion for Scheduling Relief [#51]; ICRGS's Final Motion for Summary J u d gm e n t [#53], Defendants the Texas Higher Education Coordinating Board (the "Board"), C o m m issio n er Raymund Paredes, Lyn Bracewell Phillips, Joe Hinton, Elaine Mendoza, Laurie B ricker, A.W. Riter, III, Brenda Pejobich, and Robert Shepard (collectively, "Defendants")'s response th ereto [#60], and ICRGS's reply [#61]; and Defendants' Motion for Summary Judgment [#54], and IC R G S 's response thereto [#59]. Having considered the aforementioned documents, the case file as a whole, and the relevant law, the Court enters the following opinion and orders.

B a ck g ro u n d Plaintiff the Institute for Creation Research Graduate School ("ICRGS") seeks to offer a Master o f Science degree with a major in Science Education from "a Biblical scientific creationist viewpoint" in Texas.1 Sec. Am. Compl. [#26] at ¶ 4; Def.'s Mot. Summ. J. [#54], Ex. 1. Defendant the Texas H ig h er Education Coordinating Board ("the Board") turned down ICRGS's application for a " certificate of authority" to offer the degree on April 24, 2008. Id. at ¶ 9. ICRGS claims the Board " effectively treated ICRGS's M.S. curriculum as a non-science education curriculum, due to ICRGS's op enly creationist viewpoint." Id. at ¶ 28 (emphasis in original). The basic facts leading up to the den ial are set forth below. The facts are undisputed unless otherwise indicated. I. I C R G S ' s Application for a Certificate of Authority In July 2007, ICRGS applied to the Board for a certificate of authority to offer a Master of S cience degree with a major in Science Education in Texas.2 See Def.'s Mot. Summ. J., Ex. 1 (Pl.'s ap p licatio n ). The application states ICRGS was established "for three main purposes, all involving the study and promotion of scientific creationism, Biblical creationism, and related fields[.]" Id. IC R G S included with its application extensive documentation on the proposed Master of Science d egree in order to show the program satisfied the Board's "standards of operation" which, according

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ICRGS has offered the degree for many years in California, where it originated.

T h e Texas Education Code requires a private post-secondary educational institution may not grant or award a degree or offer to grant or award a degree "unless the institution has been issued a certificate of authority to grant the d e g r e e by the board in accordance with the provisions of this subchapter." TEX. EDUC. CODE § 61.304(a); and see 19 T E X . ADM IN . CODE § 7.8(3)(A). To obtain a certificate of authority, an institution must satisfy the Board that it meets s t a n d a r d s the Board has adopted. TEX. EDUC. CODE § 61.306(a).

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to the Board, represent "generally accepted administrative and academic practices and principles of accred ited post-secondary institutions in Texas." 19 TEX. ADMIN. CODE § 7.4.3 II. R ev iew and Site Visit T h e Board's staff reviewed the application, and requested an on-site evaluation of ICRGS by a "site review team," in accordance with the Board's normal procedures. See 19 TEX. ADMIN. CODE § 7.8(3)(F).4 Generally, a site review team is designated by the Commissioner of the Board, and must b e composed of at least three individuals, "all of whom have experience and knowledge in po stsecon dary education." Id. § 7.8(3)(G). The site review team generally conducts an on-site review o f the institution and prepares a report on the institution's ability to meet the Board's standards of op eration , detailed in Rule 7.4. Id. § 7.8(3)(I). The institution then has thirty days in which to respond to the site review team's report; once it has done so, the Certification Advisory Council (the "CAC") w ill review both the site visit report and the institution's response and make a staff recommendation to the Commissioner. Id. § 7.8(3)(J)-(K). Upon receipt of the CAC's recommendation, the

C o m m is sio n e r will make his recommendation regarding the application to the Board, and the Board w ill either approve or deny the application. Id. § 7.8(3)(L)-(N). In this case, the site team was initially composed of four members, only one of whom had a science or science education background. Def.'s Mot. Summ. J., Ex. 6. That member, Dr. Loving,

Rule 7.4 sets forth specific standards for all institutions operating in the state of Texas in the following 24 areas: l e g a l compliance, qualifications of institutional officers, governance, distinction of roles, financial resources and stability, f i n a n c i a l records, institutional assessment, institutional evaluation, administrative resources, student admission and r e m e d ia t io n , faculty qualifications, faculty size, academic freedom and faculty security, curriculum, general education, c r e d it, learning resources, facilities, academic records, accurate and fair representations in advertising and promotion, a c a d e m i c advising and counseling, student rights and responsibilities, health and safety, and learning outcomes. See 19

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T EX. ADMIN. CODE § 7.4.
C h a p t e r 7 of the Texas Administrative Code has been amended and reorganized during the course of this litig a t io n . The relevant rules binding the Board have remained unchanged and in effect, although in some cases they have b e e n renumbered. The Court refers to them, unless otherwise indicated, in their current form.
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had to cancel her participation in the site visit for personal reasons; therefore, the site team was u ltim ately composed of only three members, none of whom (according to the Defendants) had a scien ce education background.5 Id. The team produced a report in November 2007, in which it e x a m in e d each of the standards set forth in Rule 7.4. With respect to the curriculum, the report co n clu d ed the "proposed master's degree in science education, while carrying an embedded component o f creationist perspectives/views, is nevertheless a plausible program[,]" and would be "generally com parab le to an initial master's degree in science education from one of the smaller, regional u n ive rs ities in the state." Def.'s Mot. Summ. J., Ex. 2. Although the report identified deficiencies in som e of the other standards (specifically, in the areas of Governing Board, Distinction of Roles, In stitu tio n al Assessment, and Library), these concerns were later addressed by ICRGS, as noted in its initial response to the report. See Pl.'s Mot. Summ. J. at ¶ 4. Based on the report and ICRGS's response, the CAC recommended conditional approval of IC R G S 's proposed program at its December 14, 2007 meeting. Id. at ¶ 12. However, the

C om m ission er of Higher Education, Raymund Paredes ("Commissioner Paredes"), allegedly observed flaw s in the site visit team's report, and accordingly recommended to the Board that a group of scientists and science educators re-evaluate ICRGS's proposed degree program. See Pl.'s Mot. Summ. J. at SOAH 477 (Comm.'s Rec. of Apr. 23, 2008). As Commissioner Paredes later wrote, "It seemed clear to me upon reading the various evaluation documents that the central issue of whether the p ro p o sed program met appropriate standards of science education had been insufficiently addressed. A s a result, I directed staff to conduct a fresh review." Id.
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The other members of this site visit team were Dr. Lee W a l le r , Ph.D., Assistant Professor in the Department o f Educational Leadership, Texas A&M; Dr. Gloria W h ite , Ed.D., Managing Director of the Dana Research Center for M a th e m a tic s and Science Education, University of Texas at Austin; and David Rankin, Social Science/Reference D o c u m e n t s Librarian at Texas A&M. ICRGS claims Dr. W h i t e also had a science education background, although it p r e s e n t s no evidence on this point.

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II.

T h e Review Panel's Review and Report A c co r d in g ly, various individuals who taught science education in Texas post-secondary

institution s, were trained as teachers in the field, and had credentials as experts in science or science e d u c atio n were assembled to re-evaluate the curriculum of ICRGS's proposed program in January 20 08 . Def.'s Mot. Summ. J., Ex. 13 (Paredes Depo.) at 21-22. The assembled review panel examined IC R G S ' s application, the mission statement of ICRGS, the Board's standards, the proposed program's ad m issio n standards and course requisites, the syllabi and textbook lists for its proposed courses, and com pared ICRGS's curriculum with science curricula from other universities. See, e.g., Def.'s Mot. S um m . J., Ex. 10 (Patterson Decl.) at ¶ 10. After undertaking their review, the panel expressed a wide variety of concerns about the c u r riculum (which are discussed in detail, infra). Commissioner Paredes and Board staff met with rep resen tativ es of ICRGS to inform them of the questions raised. After the meeting, ICRGS asked for an d was granted a postponement of the scheduled review of its application by the Board, so that it m igh t more fully respond to the concerns. ICRGS submitted revised materials to the Board, which the p an el duly reviewed.6 T h e panel ultimately recommended ICRGS's application for a certificate of authority be rejected. Essentially, the panel reasoned much of the course content was outside the realm of science an d lacked potential to help students understand the nature of science and the history and nature of the

As far as the Court can tell, the review panel initially had nine members. However, only four of the nine m e m b e r s re-reviewed the curriculum of ICRGS's proposed program after ICRGS supplemented its application to respond to the panel's requests. It is this second review panel which is relevant, as this panel studied all of the available material s u b m i t te d by ICRGS, not just its initial application. This panel was composed of the following members: Dr. Gerald S k o o g , Co-Director for the Center for Science Education and Research at Texas Tech University; Dr. Barbara Curry, S c ie n c e and M a t h e m a t i c s Education at the University of Texas at Dallas; Dr. David Hillis, a professor in Natural S c i e n c e s at the University of Texas at Austin; and Dr. C.O. Patterson, a biology professor at Texas A&M University. D e f . 's Mot. Summ. J., Ex. 6.

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natural world. See Def.'s Mot. Summ. J., Ex. 12 (Skoog Aff.). One of the reviewers, Dr. Gerald S ko og, put his conclusions in a report. See Skoog Aff., Ex. 2. IV. S taf f Recommendation to Commissioner Paredes B a se d upon Dr. Skoog's report and the recommendations of the other panel members, Dr. Josep h Stafford (the Board's Assistant Commissioner for Academic Affairs and Research), wrote a m e m o r an d u m to Commissioner Paredes on behalf of the Board staff, recommending ICRGS's ap p licatio n for a certificate of authority be rejected. Def.'s Mot. Summ. J., Ex. 6 (Stafford Rep.). He no ted the original site visit team had not included a "science education expert," and that the team had review ed ICRGS's proposed curriculum "based on general knowledge of course catalog descriptions, bu t not specifically from the perspective of a science educator." Id. He stated this was a "deficiency" in the initial review process, which had necessitated the review panel of scientists and science edu cators. Id. Dr. Stafford concluded all the Board's standards had been met by ICRGS's proposed program ex cept for "those standards directly related to the curriculum and its presentation to the public," i.e. " S tand ard 12." 7 Id. Dr. Stafford found the degree designation of science was inappropriate for the pro gram , as was the designation of the major course of study as science education. Id. He concluded the Board's standard for curriculum was not met by ICRGS's proposed program, and recommended the certificate of authority not be granted. Id.

In the revised rules, Standard 12-- t h e standard for curriculum-- i s now Standard 14 (or § 7.4(14)). See 19 TEX. A D M IN . CODE § 7.4(14). However, the Court will refer to it as "Standard 12" because it is so named in all the documents r e l a t i n g to this case.

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V.

C o m m issio n e r's Recommendation and the Board's Decision O n April 23, 2008, Commissioner Paredes recommended ICRGS's application for a certificate

o f authority should not be approved by the Board. Def.'s Mot. Summ. J., Ex. 7 (Comm.'s Rec. of A p r. 23, 2008). As justification for having a separate panel re-evaluate the proposed program, he stated that upon reading the initial site visit team's evaluation "[i]t was immediately clear to me that the review process had been flawed"--first, because the site visit team had "included no experts in scien ce education," and secondly, because "the site visit team members were instructed to focus on qu estion s of process and infrastructure and to disregard the academic focus of the proposed p ro gram [,]" and the CAC had followed a "similar tack" in its review.8 Id. Commissioner Paredes w ro te it was clear to him upon reading the site visit team and the CAC's reports that "the central issue of whether the proposed program met appropriate standards of science education had been insu fficiently addressed." Id. Therefore, Commissioner Paredes had directed staff to conduct a "fresh review ." C om m ission er Paredes, after assessing the results of the "fresh review," concluded it had been " th o r o u g h and balanced." He joined the review panel in recommending the Board deny ICRGS's ap p licatio n for two major reasons: first, he found the proposed program's curriculum was inconsistent w ith the standards or conventions of science and science education, and secondly, he found the

It should be noted ICRGS strongly disagrees the initial site visit team was asked to disregard the academic fo c u s of the degree program and adamantly denies other members of the initial site team did not have science education e x p e r i e n c e (although it presents no evidence on this point). It refers to Commissioner Paredes's statements on these p o in ts a "revisionist mischaracterization" of the site team's actual evaluation. Pl.'s Mot. Summ. J. at 6-9. Commissioner P a r e d e s does not indicate who, if anyone, instructed the site visit team to disregard the academic focus of the degree p r o g r a m . But because ICRGS does not dispute the Board has authority to re-evaluate a proposed program or to review a certain aspect of the program more thoroughly during the time the evaluation is pending, the Court finds no basis to d w e l l on the justification for the re-evaluation, which is unimportant.

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p ro gram 's curriculum was inconsistent with the Board's standards, and specifically with Standard 12, relating to curriculum. After receiving the Commissioner's recommendation, but before making its decision, the Board h e ar d from ICRGS and from representatives of the general public. On April 24, 2008, the Board d en ied ICRGS's application for a certificate of authority. V I. T h e present action Based on the Board's denial, ICRGS brought this lawsuit (which was removed to this Court in May 2009) against the members of the Board--Commissioner Paredes, Lyn Phillips, Joe Hinton, E lain e Mendoza, Laurie Bricker, Whit Riter, Brenda Pejobich, and Robert Shepard (collectively, the " B o ar d Member Defendants")--under 42 U.S.C. § 1983 for infringement of its 1st and 14th A m en d m e n t rights to free speech, free exercise, equal protection, and due process, and against the B o ard Members and the Board itself under the Texas Constitution, the Texas Religious Freedom R estoration Act ("TRFRA"), and Chapter 106 of the Texas Civil Practices and Remedies Code (which pro hibits discrimination). See Sec. Am. Compl. at ¶¶ 40-41. ICRGS sues for declaratory and injun ctive relief only. Both parties have filed motions for summary judgment and responses in opposition to the o p p o sin g party's motion. Because the motions deal with essentially the same issues, the Court will discuss them together. Analysis I. S u m m ary Judgment Standard S u m m ary judgment may be granted if the moving party shows there is no genuine issue of m a te rial fact, and it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In deciding su m m ary judgment, the Court construes all facts and inferences in the light most favorable to the

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no nm ov ing party. Richter v. Merchs. Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996). The stand ard for determining whether to grant summary judgment "is not merely whether there is a su fficien t factual dispute to permit the case to go forward, but whether a rational trier of fact could find for the nonmoving party based upon the record evidence before the court." James v. Sadler, 909 F.2d 8 3 4 , 837 (5th Cir. 1990). B oth parties bear burdens of production in the summary judgment process. Celotex Corp. v. C a trett, 477 U.S. 317 (1986). The moving party has the initial burden of showing there is no genuine issue of any material fact and judgment should be entered as a matter of law. FED. R. CIV. P. 56(c); C e lotex, 477 U.S. at 322­23; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247­48 (1986). The n o n m o v in g party must then come forward with competent evidentiary materials establishing a genuine fact issue for trial, and may not rest upon mere allegations or denials of its pleadings. Anderson, 477 U .S . at 256­57; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586­87 (1986). N eith er "conclusory allegations" nor "unsubstantiated assertions" will satisfy the non-movant's burden. W allace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). II. T e xa s Education Code § 1.001(a) IC R G S ' s primary argument is that the plain language of the Texas Education Code limits the C o d e ' s applicability (and thus the Board's authority) solely to government-funded institutions. Pl.'s M o t. Summ. J. at 2-3. It is undisputed ICRGS has never received government funding, and thus IC R G S seeks summary judgment the Board has no jurisdictional or regulatory authority over ICRGS un der the Texas Education Code. Id. Defendants disagree with this interpretation of the Education C o d e's provisions. Def.'s Resp. at 3-6. IC R G S 's argument rests entirely on § 1.001(a) of the Education Code, which provides: "This cod e applies to all educational institutions supported in whole or in part by state tax funds unless

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specifically excluded by this code." But Defendants argue § 1.001 simply indicates all educational in stitu tio n s supported by state tax funds are subject to the Education Code, but does not expressly ind icate all other educational institutions are not subject to the Code. The plain language of § 1.001(a) is consistent with Defendants' characterization. Defendants also argue § 1.001(a) cannot be interpreted to limit the Education Code's applicability only to institutions receiving government funding because th ere is a more specific provision of the Education Code which specifically mandates institutions like IC R G S are within the Board's regulatory reach--namely, the Higher Education Coordinating Act of 19 65 , codified as Chapter 61 of the Texas Education Code. TEX. EDUC. CODE §§ 61.001-.9732. Chapter 61creates the Board and vests it with authority; thus, it is the portion of the Education C od e directly applicable in this case.9 Defendants argue Subchapter G ("subchapter G") of Chapter 6 1 expressly vests the Board with authority to regulate degrees offered by ICRGS (and all other private po st-secon dary institutions which are not specifically exempted in subchapter G). Id. §§ 61.301-321. S p e cifically, subchapter G empowers the Board to regulate the use of "academic terminology" for institution s in Texas, in order "to prevent deception of the public resulting from the conferring and use of fraudulent or substandard college and university degrees." See TEX. EDUC. CODE § 61.301. To ach iev e this purpose, subchapter G provides no "person" (defined as an individual, firm, partnership, association , or other private entity or association thereof," id. § 61.302(6)) may grant or award a degree

Chapter 61 established the Texas Higher Education Coordinating Board as an agency of the state. TEX. EDUC. C O D E § 61.021(a). "[The Board] provide[s] leadership and coordination for the Texas higher education system, in s titu tio n s , and governing boards, to the end that the State of Texas may achieve excellence for college education of its youth through the efficient and effective utilization and concentration of all available resources and the elimination o f costly duplication in program offerings, faculties, and physical plants." Id. § 61.002(a). The Board consists "of nine m e m b e r s appointed by the governor so as to provide representation from all areas of the state, and "[m]embers of the b o a r d serve staggered six-year terms." Id. § 61.022(a).

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on behalf of a "private postsecondary educational institution"10 unless the institution has been issued a "certificate of authority" to grant the degree by the Board.11 Id. § 61.304(a). The Board is em p o w ered to "to specify and regulate the manner, condition, and language used by an institution...or agen ts thereof in making known that the...institution holds a certificate of authority and the interpretation of the significance of such certificate." Id. § 61.304(c). In sum, as it was explained by th e Texas Supreme Court, "subchapter G...requires that a private post-secondary institution either have B o ar d -a p p ro v ed accreditation or satisfy Board-adopted standards before it can describe itself and its stud ents' attainments with words commonly used for those purposes by such institutions." HEB M in istries, Inc. v. Texas Higher Educ. Coordinating Bd., 235 S.W.3d 627, 636-37 (Tex. 2007) (citation s omitted). Thus, subchapter G, on its face, gives the Board authority to regulate the granting of degrees by ICRGS, which undisputedly fits within the definition of a "private postsecondary educational ins titutio n " set forth in subchapter G. Although § 1.001(a) does state the Education Code as a whole ap p lies to "all educational institutions supported in whole or in part by state tax funds," the provisions o f subchapter G are not in conflict with that mandate. Well-established principles of statutory con struction require the Court to presume "the entire statute is intended to be effective"; furthermore,

ICRGS does not dispute the fact it is a private postsecondary education institution within the purview s u b c h a p te r G, which defines a "private postsecondary educational institution" as an educational institution which is not a public institution within the definition of § 61.003, and "is not incorporated under the laws of this state, maintains a p l a c e of business in this state, has a representative present in this state, or solicits business in this state" and "furnishes o r offers courses of instruction in person, by electronic media, or by correspondence leading to a degree or providing c r e d i ts alleged to be applicable to a degree." Id. § 61.302(2). Some institutions are exempt from this provision, such as those that are "fully accredited by a recognized a c c r e d i tin g agency." Id. § 61.303. Such institutions are generally issued a "certificate of authorization," rather than a c e r t i f ic a t e of authority. Id. But ICRGS does not present any evidence it is exempt from the requirements of subchapter G , and thus the Court assumes subchapter G applies to ICRGS.
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if a general provision conflicts with a more specific provision, "the provisions shall be construed, if po ssible, so that effect is given to both." TEX. GOVN'T. CODE §§ 311.021(2), 311.026(a). Keeping these principles in mind, the Court finds § 1.001(a) does not limit the applicability of the Education Code only to institutions supported by state tax funds. The Legislature clearly intended to regulate the offering of degrees by private postsecondary educational institutions in enacting s u b ch ap ter G, and therefore ICRGS is not exempt from the Board's authority under subchapter G. P lain tiff's motion for summary judgment on this issue is accordingly DENIED. H aving addressed this primary issue, the Court will proceed to address each of ICRGS's causes of action in turn, to the extent it is able to understand them. It appears that although the Court has tw ice required Plaintiff to re-plead and set forth a short and plain statement of the relief requested, P laintiff is entirely unable to file a complaint which is not overly verbose, disjointed, incoherent, m au n d erin g, and full of irrelevant information. II. F ree Exercise, Free Speech, and Equal Protection Claims F irst, although it is difficult to follow ICRGS's complaint, it appears ICRGS contends the B o ar d engaged in "viewpoint discrimination" against ICRGS, thereby violating its constitutional rights to free exercise of religion, free speech, and equal protection. See Sec. Am. Compl. at 40. ICRGS m ak es an as-applied challenge to the State's regulation of its issuance of degrees--and specifically, to the Board's decision to deny its application under those laws--basing all of its constitutional claims on an identical set of facts. See, e.g., id. at 8-39. A. F ree Exercise Claim

T h e First Amendment's prohibition on the making of a law "prohibiting the free exercise" of religion applies to the states through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U .S . 296, 303 (1940). The "free exercise of religion means, first and foremost, the right to believe and

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pro fess whatever religious doctrine one desires." Cornerstone Christian Schs. v. Univ. Interscholastic L e a g u e, 563 F.3d 127, 135 (5th Cir. 2009) (quoting Employ. Div., Dep't of Human Res. of Ore. v. S m ith , 494 U.S. 872, 877 (1990)). Thus, the First Amendment forbids "all governmental regulation of religious beliefs as such." Id. However, the government does not impermissibly regulate religious belief when it promulgates a "neutral, generally applicable" law or rule which happens to result in an inciden tal burden on the free exercise of a particular religious practice or belief. Id.; Employment Div., 4 9 4 U.S. at 879 (holding the Free Exercise Clause "does not relieve an individual of the obligation to co m p ly with a valid and neutral law of general applicability on the ground that the law proscribes (or p r e s c rib es) conduct that his religion prescribes (or proscribes)."). Thus, a law that is neutral and gen erally applicable prompts rational basis review, rather than strict scrutiny--it need only be ration ally related to a legitimate governmental interest in order to survive a constitutional challenge. Id. Defendants argue the Board's governing standards (under which it found ICRGS's curriculum la ck in g ) are neutral and generally applicable, and therefore rational basis review applies to ICRGS's free exercise claim. A law or rule is considered neutral and generally applicable "so long as its object is something other than the infringement or restriction of religious practices." Grace United Meth. C h u rch v. City of Cheyenne, 451 F.3d 643, 649-50 (10th Cir. 2006). But "if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral." Church o f the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993). It is clear the rules gov erning the Board in this case are facially neutral, and ICRGS notably does not argue otherwise. W ith few exceptions, all post-secondary institutions--whether religious or secular, private or p u b lic-- ar e required to submit to the State's standards if they desire to grant college or graduate degrees. See TEX. EDUC. CODE. §§ 61.0512; 61.304; 61.306; 19 TEX. ADMIN. CODE § 7.1. The Texas

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S u p r e m e Court recently stated with respect to the standards set forth in subchapter G that "to issue d egrees [an institution] must comply with public standards. There is no disparate treatment of any cate go r y of institutions." HEB Minist., 235 S.W.3d 627, 684. Thus, the Texas Supreme Court co n clu d ed the statutory scheme in question "is neutral and generally applicable[.]" Id. This Court agrees. Therefore, the Court finds the Board's decision to deny a certificate of authority to ICRGS is su b ject only to rational basis review, as the rules which governed the decision are neutral and generally ap p licab le. Having so decided, the Court turns to the question of whether the Board's application of tho se rules to ICRGS was "rationally related to a legitimate state interest." Employment Div., 494 U.S. at 879; Cornerstone, 563 F.3d at 139. a. L egitim ate State Interest

In requiring private postsecondary institutions to seek certificates of authority in order to offer a degree, the Legislature made the following determinations about the purpose of so doing: It is the policy and purpose of the State of Texas to prevent deception of the public resu ltin g from the conferring and use of fraudulent or substandard college and u n iv ersity degrees; it is also the purpose of this subchapter to regulate the use of acad em ic terminology in naming or otherwise designating educational institutions, the adv ertising, solicitation or representation by educational institutions or their agents, and the maintenance and preservation of essential academic records. Because degrees an d equivalent indicators of educational attainment are used by employers in judging the training of prospective employees, by public and private professional groups in d eterm in in g qualifications for admission to and continuance of practice, and by the gen eral 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 an d university educational attainment is in the public interest. To the same end the p ro tection of legitimate institutions and of those holding degrees from them is also in the public interest. T EX. EDUC. CODE § 61.301. In other words, the Legislature enacted subchapter G in order to (1) " p r ev en t deception of the public resulting from the conferring and use of fraudulent or substandard

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co llege and university degrees," (2) assist employers, professional groups, and the public in assessing th e competence and academic qualifications of the individuals who have a degree (or other indicators o f educational attainment), and (3) protect legitimate institutions and those holding their degrees from the watering-down of their degrees--all purposes which the Legislature specifically found to be "in the public interest." Id. There is no doubt the interests the Legislature sought to protect in enacting subchapter G are legitim ate interests of the State. As Chief Justice Marshall held almost two centuries ago, "[t]hat edu cation is an object of national concern, and a proper object of legislation, all admit." Trustees of D artm ou th College v. Woodward, 4 Wheat. 518, 634, 4 L.Ed. 629, 658 (1819). The Supreme Court h as long held there "can be no doubt as to the power of the State, having high responsibility for edu cation for its citizens, to impose reasonable regulations for the control of" education. Wisconsin v. Yoder, 406 U.S. 205, 213 (1972). Likewise, the Texas Supreme Court has recognized "education is perhaps the most important function of state and local governments." Neeley v. West Orange-Cove C o n so l. Indep. Sch. Dist., 176 S.W.3d 746, 799 (Tex. 2005) (quoting Brown v. Board of Educ., 347 U .S . 483, 493 (1954)). The United States Supreme Court has also held states have a proper interest in the manner in which private schools perform their "secular educational function." Cent. Dist. No 1 Bd. of Educ. v. Allen, 392 U.S. 236, 245-47 (1968). Importantly, other state supreme courts have s p ec ific ally held the granting of academic degrees as evidence of academic achievement is "very intim ately related to the public welfare, and is unquestionably subject to regulation by the State." See, e.g . Shelton College v. State Bd. of Ed., 48 N.J. 501, 512 (N.J. 1967). As the Supreme Court of V erm o n t long ago rationalized: T o hold that the legislature intended...that any three men in any town in the state, h o w ev er illiterate or irresponsible, might organize and flood the state with doctors of m ed icin e, doctors of law, doctors of divinity, masters of arts, civil engineers, and the

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other various titles that everywhere in the civilized world have signified high attainm en ts and special equipment for professional work, is to liken it to the witty F re n ch minister who threatened to create so many dukes that it would be no honor to be one, and a burning disgrace not to be one. T o w n sh en d v. Gray, 19 A. 635, 636 (Vt. 1890). B ase d on the foregoing law, the Court finds the State of Texas has a very obvious legitimate interest in protecting the public by ensuring any degree offered in Texas is meaningful and is based up on certain uniform institutional and curricular standards, such that those who rely on the degree may assu m e the holder has a certain level of academic qualifications and competence in the relevant field.

b.

R a tio n a l relation

The touchstone of rational basis review is whether the government's action is "rationally related to a legitimate state interest." City of Cleburne, 473 U.S. at 440. The rational basis test is ex trem ely deferential to the government and the states; it is "not a license for courts to judge the w isdo m , fairness, or logic" of government regulation. FCC v. Beach Comm'ns., Inc., 508 U.S. 307, 3 1 3 (1993); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) ("[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations."). Thus, gov ernm ent regulation is "accorded a strong presumption of validity," Heller v. Doe, 509 U.S. 312, 3 1 9 (1993), and "the burden is on the one attacking the [regulation] to negative every conceivable basis w hich might support it." Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973). G o v er n m en t action does not fail rational basis review because it "is not made with mathematical nicety or because in practice it results in some inequality." Dandridge v. Williams, 397 U.S. 471, 485 (1970). O f course, even if the Board's application of its rules to ICRGS in this case was rationally related to legitimate interests of the State of Texas, ICRGS may nevertheless prevail if it demonstrates

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the Board's decision was the result of government animus toward religious viewpoints--in other w ord s, if it can show the decision was the product of "invidious viewpoint discrimination."12 Lukumi, 5 0 8 U.S. at 547; Nat'l. Endow. for the Arts v. Finley, 524 U.S. 569, 587 (1998). In Finley, the S u p rem e Court emphasized the government may not punish disfavored viewpoints under the guise of legitim ate regulation. Stearns, 679 F. Supp. 2d at 587 (citing Finley, 524 U.S. at 587)); and see Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991) ("Regulations w h ich permit the government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.")). At issue in this case is the reasonableness of the Board's determination that ICRGS's proposed d egr ee program does not merit a certificate of authority under its governing standards, and specifically S tan d ard 12, and whether the decision was rationally related to the legitimate state interests already id en tified and not motivated by animus toward a religious viewpoint. The Board reached its decision b ase d on the recommendation of Commissioner Paredes, who in turn relied upon the staff recom m end ation and the evaluation done by the review panel of scientists and science educators. First, the review panel reviewed all the information submitted by ICRGS, both in its ap p licatio n and after it had an opportunity to respond to the panel's concerns. After reviewing the to tality of the information, the panel uniformly recommended ICRGS be denied a certificate of au th o rity to offer its proposed program as a Master of Science in Science Education degree. For in stan ce, Dr. Patterson, one of the review panel members, stated he found "the course descriptions ind icated a very narrow and over-simplified approach to understanding or teaching modern science."
12

As the Court noted in Association of Christian Schools Intern. v. Stearns, this principle is not accepted by all m e m b e r s of the Supreme Court, but has been condoned by the majority. 679 F. Supp. 2d 1083, 1102 n.21 (C.D. Cal. 2 0 0 8 ) (citing Lukumi, 508 U.S. 520, 558 (Scalia, J., concurring) ("[The First Amendment] does not put us in the business o f invalidating laws by reason of the evil motives of their authors.") and id. at 547 (Kennedy, J.) ("Legislators may not d e v i s e mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.")).

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Patterson Decl. at ¶¶ 10-11. Dr. Patterson noted the textbooks specified in several of the program cou rse descriptions were introductory texts typical for freshman-level undergraduate classes. Id. at ¶ 10. Dr. Patterson states in his declaration, "[t]he rigor of the proposed course work appeared to be rem arkab ly low, certainly not what we would expect of graduate-level courses." Id. He also con clud ed the overall curriculum of the program indicated a "strikingly deficient and incorrect un derstand ing of modern science, its methods, procedures, ways of knowing, and generally-accepted con clusion s." Id. at ¶ 11. He found many of the course descriptions reflected an intent to indoctrinate stu d en ts in a particular religious-based mode of thought and set of conclusions, "rather than preparing them to instruct students in modern science." Id. Another panel member, Dr. Gerald Skoog, produced a lengthy written report for the Board. S k o o g Aff, Ex. 2. In the report, he detailed the reasons why ICRGS's curriculum did not, in his view, m eet the requirements of the Board's standards. Id. Dr. Skoog found ICRGS's stated purpose of teach in g students to be leaders in science education could not be met by the program because ICRGS re jects (as is evidenced by its courses, course content, and mission statement) "the underlying principle that science works by providing `explanation through natural law.'" Id. He discussed details of the pro po sed program and course work at length, and concluded the program "ignores established scien tific evidence," and "integrates selective scientific data that gives credence to [the framework of B ib lical creationism], but ignores, or circumvents, a large body of scientific data that erodes and shatters the foundation of this framework." Id. He stated the courses listed for the program "are not co m p arab le either in their design or emphasis with existing graduate courses...and the breadth of kn ow ledge that characterizes the biological and geosciences was not reflected in the individual science cou rses conceptualized for this program." Id. Dr. Skoog determined the program had limited or no po tential to increase the readiness of students enrolled in the program to pursue science-related careers,

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and recommended ICRGS's application therefore be denied. Id. The rest of the panel agreed with his recom m end ation . See Def.'s Mot. Summ. J., Exs. 10, 11, 14, 15. Another reviewer, Dr. David Hillis, agreed Dr. Skoog's report was "thorough and accurate," and added to its conclusions the following: [T ]h e evidence in this application clearly indicates this proposed program is not about scien ce education. Science education emphasizes that science is learning about the u n k no w n from a neutral perspective, relying on observable evidence and ex p e rim en tatio n . In contrast, this program is about religion, not science[.]... The [IC R G S ] program clearly does not meet the standards of the [Board]. In particular the p ro p o sed course of study in no way "adequately cover[s] the breadth of knowledge of th e discipline taught." The vast majority of the proposed science courses do not re sem b le any offered for graduate credit by other Texas colleges and universities in bread th, depth, or content, and they would not be acceptable for transfer or credit as a result. The proposed program of study in no way would adequately prepare students in the field of science education, at any level, and certainly not at the graduate level. Id ., Ex. 11. Dr. Joe Stafford subsequently presented a negative recommendation to the Commissioner in a staff memorandum dated April 18, 2008. See Def.'s Mot. Summ. J., Ex. 6 (Stafford Rep.). Dr. S taffo rd noted that to meet the requirements of Standard 12, the "quality, content, and sequence" of a proposed curriculum must be "appropriate to the purpose of the institution," and must be "such that th e institution may reasonably and adequately achieve the stated objectives" of the program.13 Id. at

13

Standard 12 reads in relevant part:

( A ) The quality, content, and sequence of each course, curriculum, or program of instruction, training, o r study shall be appropriate to the purpose of the institution and shall be such that the institution may r e a s o n a b l y and adequately achieve the stated objectives of the course or program. Each program shall a d e q u a t e l y cover the breadth of knowledge of the discipline taught and coursework must build on the k n o w l e d g e of previous courses to increase the rigor of instruction and the learning of students in the d isc ip line .... ( D ) The degree level, degree designation, and the designation of the major course of study shall be a p p r o p r ia t e to the curriculum offered and shall be accurately listed on the student's diploma and tra n sc rip t. 19 TEX. ADM IN . CODE § 7.14(14).

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4 . Furthermore, the program must "adequately cover the breadth of knowledge of the discipline taugh t"-- in this case, science and science education." Dr. Stafford quoted the following excerpts from IC R G S 's program catalog: 1. 2. " It is the position of the institute that...all genuine facts of science support the Bible." " T h e phenomenon of biological life did not develop by natural processes from in an im ate systems but was specially and supernaturally created by the creator." " A ll things in the universe were created and made by God in the six literal days of the C r eatio n Week described in Genesis...[.] The creation record is factual, historical, and persp icuo us; thus all theories of origin and development that involve evolution in any form are false.

3.

Id. at 5 (emphasis added by Stafford). Dr. Stafford concluded these statements (and others) constituted a rejection of the fundamental principles which guide what scientists do, because scientists must " re m ain open to all facts and all observations of natural phenomena in order to refine and improve their com preh ensive explanations of how natural processes appear to work." Id. at 5. "Scientists seek to u n d er stan d how the world works naturally...[and] do not rely on supernatural interventions to explain the observations found in nature[.]" Id. Thus, he concluded the guiding principles of ICRGS are in " d irect conflict" with the principles that guide what scientists do, and as a result ICRGS cannot accom plish its stated objective of preparing students "for leadership in science education."14 D r. Stafford also noted Standard 12 requires the degree level and designation of a proposed pro gram must be "appropriate to the curriculum offered." Id. Dr. Stafford noted ICRGS's proposed d egree was a Master of Science in Science Education, but the review panel had found many of the pro po sed textbooks were more commonly used in undergraduate classes, and many of the course ob jectives were course objectives for undergraduate science courses. Dr. Stafford found the degree

14 ICRGS's stated purpose in offering its proposed program is two-fold: to teach students to (1) understand the u n iv e rs e within through biblical perspective, and (2) be leaders in science education." Id. at 6.

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d esign ation "Master of Science" to be inappropriate because the program's "[s]cience coverage is n arro w and focused on the specific issues of expressed concern to [ICRGS]...[and] students do not cov er any field of science with breadth at the graduate level." Id. For example, he noted the program in clu d es courses with objectives such as "Interpret paleoclimate descriptions in accordance with a you ng-earth age model," or "Evaluate flaws in the theory of biological evolution." Id. at 6. Dr. S tafford noted the review panel had concluded the curriculum was not in alignment with other curricula for designated master's level science education programs. Id. Dr. Stafford concluded his re p o rt by stating "[t]o designate this curriculum as a Master of Science in Science Education would be misleading to the public." Id. Based on the review panel's evaluation, the staff recommendation, and his own inquiry, C o m m is sio n e r Paredes recommended in writing on April 23, 2008 that the Board deny ICRGS's a p p licatio n . He set forth two main reasons for this negative recommendation. First, he found the IC R G S program was inconsistent with the standards or conventions of science and science education. Id . He noted ICRGS requires faculty to be committed to "young earth creation science and the Bible," th e mission of ICRGS is to "study, teach and communicate the works of God's creation," and the IC R G S catalog sets forth among its basic principles that "the phenomenon of biological life did not d ev elo p by natural processes from inanimate systems but was specially and supernaturally created by the creator." Id. He stated these beliefs "run counter to the conventions of science, which hold that claim s of supernatural intervention are not testable and, therefore, outside the realm of science." Id. H e found at least one of the texts which was to be used in the program set forth the principle that the e ar th is young, stating "this is not a working hypothesis to be tested as to whether it is true or false[, bu t] a basic conclusion drawn from the biblical record of creation as written by the only One who was p resen t, God himself." Id. Commissioner Paredes stated, "[w]hatever the ultimate merit of such

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v iew s, they clearly stand at odds with the most basic tenants of scientific work such as observation, testing and analysis." Id. Secondly, Commissioner Paredes found the ICRGS program was inconsistent with Standard 1 2 , which requires proposed programs "shall adequately cover the breadth of knowledge of the discipline taught," and that "degree level, degree designation, and the designation of the major course o f study shall be appropriate to the curriculum offered[.]" 19 TEX. ADMIN. CODE § 7.4(14). He stated h e agreed with the review panel that the proposed program--because it insists on a literal interpretation o f biblical creation--gives insufficient coverage to conventional science and does not adequately p rep are students in the field of science education. Commissioner Paredes concluded: T h e key point here is this: the proposed Master of Science in Science Education p ro gra m inadequately covers key areas of science and their methodologies and rejects o n e of the foundational theories of modern science; hence, the program cannot be pro perly designated as either `science' or `science education.' D ef.'s Mot. Summ. J., Ex. 7. He stated he did not intend to question the validity of any set of religious b eliefs, and that science and religious belief are surely reconcilable; however, "they are not the same thing." Id. Based on all the foregoing, it is clear the Board had at least one reasonable rationale for its d ecisio n to deny ICRGS's application; namely, that the proposed degree program does not adequately co v er the breadth of knowledge of the discipline taught under Standard 12. Specifically,

C o m m iss io n e r Paredes found the program "inadequately covers key areas of science and their m eth o d olo gies and rejects one of the foundational theories of modern science," and thus "cannot be p ro p erly designated as either `science' or `science education.'" The review panel of scientists and scien ce educators who reviewed ICRGS's curriculum, proposed courses, proposed textbooks, and o the r materials were unanimous in proclaiming the program would not adequately prepare students

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in the field of science education. Dr. Stafford agreed with their assessment, as did Commissioner P a red es. Based on the evidence detailed above, Defendants reasonably could have concluded the p ro p o sed program did not adequately prepare students in the field of science education, and could not p ro p er ly be designated as such a degree. This decision is rationally related to the State's legitimate inter est in protecting the public by preserving the integrity of educational degrees. ICRGS presents n o specific evidence indicating the conclusion reached by the Board was somehow flawed or u n reaso n ab le. Because Defendants have presented one clearly reasonable rationale for their decision to deny the certificate of authority, the Court need not address any other reasons in support of the d ecisio n .15 Preminger v. Principi, 422 F.3d 815, 825 (9th Cir. 2005). O f course, Defendants may still fail rational basis review if ICRGS is able to show Defendants rejected ICRGS's proposed program in order to punish its religious viewpoint, rather than out of ration al concern about the academic merit of the program. See Lukumi, 508 U.S. at 547. However, IC R G S has set forth no actual evidence of any animus toward it because of its religious viewpoint by an y Defendant (although ICRGS's filings contain no shortage of speculation on this subject). For ins tan ce, there is no indication the Board routinely refuses to grant religious institutions approval to o ffer science or science education degrees, or any other degree, as long as their programs meet the stand ards set by the Board for curriculum and in other areas. Nor has ICRGS submitted any evidence the Board drafted its standards to target institutions offering science-related degrees with creationist v ie w p o in ts ; in fact, the standards are perfectly neutral. There is also no evidence Commissioner P ar ed es or any of Defendants who voted to deny did so with any sort of religious motivation; in fact,

The Court notes for the record it enters no opinion here on whether it agrees with the Board's decision. It does n o t " judge the wisdom, fairness, or logic" of the Board's decision, because it has no jurisdiction to do so. FCC, 508 U . S . at 313. The Court simply comes to the conclusion, which is inescapable, that the decision was rationally related to a legitimate state interest.

15

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C o m m issio n er Paredes specifically stated in his recommendation he did not intend to question the validity of any set of religious beliefs, and that science and religious belief are surely reconcilable, altho ugh "they are not the same thing," and should not be taught as such. Id. Simply put, ICRGS has presen ted no concrete evidence of animus toward any religious viewpoint by any of Defendants; thus, IC R G S has not shown the Board's actions were taken for any reason other than furthering the State's com pelling interest in protecting the public by preserving the integrity of educational degrees.16 F o r the reasons stated above, the Court finds the Board's decision was rationally related to a legitim ate governmental interest, and there is no evidence the decision was motivated by animus to w ard any religious viewpoint. Therefore, ICRGS's free exercise claim fails as a matter of law, and su m m ary judgment is proper for Defendants on this claim.17 B. F ree Speech Claim

ICRGS does offer various emails sent by members of the review panel, which it claims exhibit discriminatory b i a s . Pl.'s Resp. [#59], Ex. 3; Pl.'s Reply [#61] at ¶ 5. But the emails in question were sent by members of the initial r e v ie w panel-- s p e c ific a lly , Daniel Foster and Andrew Ellington-- a n d one scientist who was invited to join the review p a n e l but did not (Robert Curl). None of the emails were written by members of the review panel whose report and o p in io n s Dr. Stafford and the Commissioner relied upon. Thus, their views are irrelevant. Furthermore, the emails reveal n o sinister motives on the part of the writers: at the most, they reveal they had written Commissioner Paredes opposing t h e grant of a certificate of authority to ICRGS before they were formally asked to be part of the review panel. But this is not evidence of discriminatory intent in and of itself; it is only evidence they had opinions on the subject of whether t h e curriculum of the proposed program was fitting, which is unremarkable given they were experts in the field. ICRGS also brings a claim under Texas Civil Practices and Remedies Code § 106.001, which prohibits officers o f the state from refusing to issue a certificate, grant participation in a state-operated program, or grant a benefit to a p e r s o n because of their religion. See Sec. Am. Compl. at ¶ 41(f) (citing TEX. CIV. PRAC. & REM. CODE § 106.001). But b e c a u s e , as stated supra, the Court finds ICRGS has submitted no evidence raising a genuine issue of fact as to whether th e Board's decision to deny its application was motivated by animus or discriminatory intent toward ICRGS's religious v i e w p o i n t , this claim necessarily fails. Likewise, ICRGS brings a free exercise claim under article I, § 6 of the Texas Constitution, which states "no p r e fe r e n c e shall ever be given by law to any religious society." The parties do not argue there is any difference in the f e d e r a l and state constitutional provisions; thus, summary judgment is also appropriate on Plaintiff's free exercise claim u n d e r the Texas Constitution. See Tilton v. Marshall, 925 S.W .2 d 672, 677 n. 6 (Tex. 1996) ("Because Tilton has not a r g u e d persuasively for a different application of the provisions of the First Amendment and Article I, Section 6 as they p e r ta in to the free exercise of religion, we assume without deciding that the state and federal free exercise guarantees a r e coextensive with respect to his particular claims.").
17

16

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IC R G S also argues the Board's decision to refuse it a certificate of authority to offer its Master o f Science Education program in Texas violated its freedom of speech.18 This claim is based on the e x a c t same facts as the free exercise claim considered in the preceding section, and the Board's decision is subject to rational basis review in this context as well. The Supreme Court has rejected heightened scrutiny where, as here, the government provides a public service that, by its nature, requ ires evaluations of and distinctions based on the content of speech. See United States v. American L ibra ry Ass'n, Inc., 539 U.S. 194, 203-208 (2003) ("ALA"); Nat'l Endowment for the Arts v. Finley, 5 2 4 U.S. 569, 580-87 (1998).19 It is hard to imagine a situation which more acutely requires the State to evaluate and make distinctions based on the content of speech than the one presented in this case. T h e Board, in order to protect Texas citizens and ensure the reliability of degrees earned within the S tate's borders, is charged with reviewing the curricula of proposed degrees to be offered by in s t itu tio n s of higher education so that it may determine whether those degrees are substandard or fraud ulent. See TEX. EDUC. CODE § 61.301. By its very nature, this public service requires that the B oard evaluate the content of the degree programs to be offered. Thus, the Board's decision is subject to rational basis review. As the Court stated above, under rational basis review the burden lies with the challenger "to n egativ e every conceivable [rational] basis which might support" the government's decision.

Of course, ICRGS is still perfectly free to offer the program, using any curricula, classes, or textbooks it w is h e s . ICRGS has only been denied the right to offer its proposed program as a Master of Science in Science Education d e g r e e , because the Board has determined it has not met the Board's uniform, state-wide standards for offering such a p ro gra m .
19 T h i s case does not involve a forum and neither party argues it is a public forum case, which would render it s u b j e c t to heightened judicial scrutiny.

18

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L ehn ha usen , 410 U.S. at 364. ICRGS does not attempt this feat, and would fail if it tried. ICRGS's free speech challenge fails rational basis review for the reasons stated in section (A), supra.20 C. E q u a l Protection Claim

IC R G S also argues Defendants violated the Equal Protection Clause of the United States C o n stitu tio n by discriminating against it on the basis of its religious beliefs. The Equal Protection C lau se "commands that no State shall `deny to any person within its jurisdiction the equal protection o f the laws, `which is essentially a direction that all persons similarly situated should be treated alike.'" City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Because the Court has already determ ined , supra, that the Board's decision was not a violation of ICRGS's fundamental rights to the free exercise of its religion or to free speech, rational basis scrutiny applies to ICRGS's equal pro tection claims.21 Locke v. Davey, 540 U.S. 712, 721 n.3 (2004); Johnson v. Robison, 415 U.S. 361, 37 5 n. 14 (1974) ("[because] we hold...that the [law] does not violate appellee's right of free exercise of religion, we have no occasion to apply to the challenged classification a standard of scrutiny stricter tha n the traditional rational-basis test."); Teen Ranch v. Udow, 389 F. Supp. 2d 827, 841 (W.D. Mich. 20 05 ) ("[because plaintiffs] do not have a meritorious Free Speech or Free Exercise claim, their Equal P rotection claim is subject to rational basis scrutiny.").

For the same reasons, Defendants are entitled to summary judgment on ICRGS's claims under the free speech p r o v i sio n of the Texas Constitution. Although Texas courts have recognized the Texas free speech clause differs t e x t u a l l y from its federal counterpart and may offer greater protection in some circumstances, Alcorn v. Vaksman, 877 S . W .2 d 390, 401-02 (Tex.App.­Houston [1st Dist.] 1994, writ denied), ICRGS has not cited any authority interpreting th e Texas free speech clause to provide greater protection to a plaintiff under similar facts and circumstances to those p r e s e n t e d in this case. Accordingly, Defendants are also entitled to summary judgment on ICRGS's free speech claim b a s e d on the Texas Constitution. " W h e r e ...th e classification created by the regulatory scheme neither trammels fundamental rights...nor burdens a n inherently suspect class, equal protection analysis requires only rational basis review." Cornerstone, 563 F.3d at 139 ( c i t a t i o n omitted).
21

20

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F o r all the reasons stated above, the Board's decision to deny ICRGS a certificate of authority passes such review; Defendants are therefore entitled to summary judgment on ICRGS's equal p ro tectio n claim.22 III . D u e Process Claim IC R G S also contends it was denied its constitutional right to due process because the Board used arbitrary procedures and unjustly applied its rules in denying it a certificate of authority. Sec. A m . Compl. at ¶¶ 40(c), 41(d). It is unclear whether ICRGS intends to assert a procedural or su b stan tiv e due process claim in its complaint, although in its response to Defendants' motion for su m m ar y judgment it claims "both procedural and substantive due process rights are concerned" in this case. See Pl.'s Resp. at ¶ 52. Thus, the Court will assume ICRGS intends to assert both a procedural and a substantive due process claim. A. P roced u ral due process P r o ced u ral due process "imposes constraints on governmental decisions that deprive in d iv id u als of `liberty' or `property' interests within the meaning of the Due Process Clause of the F ifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Thus, "[t]o bring a procedural due process claim..., a plaintiff must first identify a protected life, liberty or property interest and then prove that governmental action resulted in a deprivation of that interest." Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001). When a plaintiff is deprived of a protected interest, p ro ced u ral due process requires "notice and an opportunity to be heard" before a final deprivation of the interest. Cleveland Bd. of Educ. v. Loudermille, 470 U.S. 532, 546 (1985).
22

Defendants are likewise entitled to summary judgment on ICRGS's equal protection challenge under the Texas C o n s titu tio n , as such challenges are analyzed in the same manner as equal protection claims under the federal C o n s t i t u t i o n . Reid v. Rolling Fork Public Util. Dist., 979 F.2d 1084, 1089 (5th Cir. 1992); Hogan v. Hallman, 889 S . W .2 d 332, 338 (Tex. App.­Houston [14th Dist.] 1994, writ denied).

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IC R G S 's procedural due process claim hinges on whether it can show (1) it has a protected p ro p erty interest in offering its program as a Master of Science in Science Education, and (2) gov ernm ental action resulted in a deprivation of that interest.23 The Supreme Court has made clear " th e property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money." Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 769 (2005). In fact, "property interest" denotes a "broad range of interests that are secured by existing rules or un derstand ings." Id. (quoting Perry v. Sindermann, 408 U.S. 593, 601 (1972)). A property interest m ay arise from an expectation or interest created by state laws or policies, see, e.g. Wolff v. M cD o n n ell, 418 U.S. 539, 556-558 (1974); thus, the Supreme Court has found protected "property" in te re sts in the retention of a number of state-conferred benefits and services, including welfare ben efits, disability benefits, public education, utility services, government employment, and in other entitlem ents that defy easy categorization. Id. (citing cases). But the common ground among these c as es is that "due process only becomes relevant where such property is `deprived' e. g., where welfare b en efits are terminated...; where public employees are discharged...; or where licenses are revoked[.]" W ells Fargo Arm. Servs. Corp. v. Georgia Public Serv. Comm'n., 547 F.2d 938, 941 (1977). In this case, it is undisputed ICRGS never had a certificate of authority to offer its Master of S cien ce in Science Education degree in Texas; thus, no entitlement to such a certificate could possibly

ICRGS also asserts it may have a protected liberty interest at stake, but notably cites no legal support for this c l a i m . A liberty interest is generally created in one of two ways: either the Due Process Clause confers the liberty i n t e r e s t , Sandin v. Conner, 515 U.S. 472, 479 n. 4 (1995), or the interest is created by the state through a statute. Id. at 4 7 7 - 7 8 . The Supreme Court has stated the "liberty"specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use c o n t r a c e p t i o n , to bodily integrity, and to abortion, among other things. See Washington v. Glucksberg, 521 U.S. 702, 7 2 0 (1997) (collecting cases). ICRGS cites no authority to support the absurd proposition the D u e Process Clause p r o t e c t s , as a fundamental liberty interest, the right to offer an academic degree. Nor does ICRGS argue any state statute c o n f e r s this as a fundamental right. Therefore, the Court finds ICRGS does not have a protected liberty interest in o ffe r i n g its degree unimpeded by state regulation, and continues its analysis.

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h av e been created by the