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Religious entanglement

Higher Ed committee bows to conservative church groups on 'suspect' rule


It should have been an easy vote: The attorney general opines that an exemption for certain religious education programs is "constitutionally suspect," an advisory committee recommends the rule be repealed, and sends the matter on to the state Higher Education Coordinating Board for final approval. More than six months later, though, the issue is back in front of the advisory council, which voted July 13 to keep the exemption intact - even though the exemption has no real value. The reasoning? It's just better not to stir up religious conservatives any more than they already are. Leave the exemption in since it's worthless anyway, and ignore the advice of an assistant attorney general that doing so is "borrowing trouble." "If it really doesn't make any difference in your processes, why evoke or create that many ill feelings if it's something that's really not necessary?" said Dr. Larry Williams, chancellor of ASU-Newport and a member of the Institutional Certification Advisory Committee. The exemption covers educational programs offered by religious groups that aren't for college credit - such as training people to be ministers or Sunday school teachers or missionaries. It states that the groups don't have to have their programs reviewed by the Advisory Committee, which makes recommendations on certification of non-public colleges' programs. However, the Advisory Committee only reviews programs that advertise themselves as being for college credit or leading to a degree that's traditionally accepted in the academic marketplace. If an organization, religious or not, isn't billing their goods as for college credit, they're in effect exempt from scrutiny. "There's no reason to have it in there except to invite a lawsuit," said Advisory Committee member Sylvia Orton, the only person to vote for repealing the exemption at the July 13 meeting. So what's the exemption doing there in the first place, if it's in reality pointless? "It was a trend, is my understanding, that kind of swept the country back in the late '80s," said Karen Wheeler, a Department of Higher Education staffer who deals with certification issues. "A lot of states had them. A lot still do." Several years ago, the Advsiory Committee began a revision of all its rules. The religious exemption came up, and the committee eventually asked then-Attorney General Mark Pryor to issue an opinion on the exemption's constitutionality. The opinion called it "constitutionally suspect," and advised the committee to repeal it or broaden it to non-religious groups. The Advisory Committee decided repealing it was the best course, and sent the matter on to the Higher Education Coordinating Board, which makes the final decision on rule changes. The coordinating board met in Conway last October, and two busloads of protesters showed up to argue against repealing the exemption, Williams said. They were mostly affiliated with religious high schools, he said - in other words, not even regulated at all by the Department of Higher Education. But they saw a vote to repeal the exemption as a first step toward taking away their religious freedom. The coordinating board tabled the proposal in order to get an opinion from current Attorney General Mike Beebe (he later declined to give one). After a couple of rounds of public comment and committee meetings, they'll face it again, probably this fall. However, with Orton apparently the lone member still in favor of repealing the exemption, it's not likely the coordinating board will vote to remove it. Instead, they've rewritten the rules to more clearly state that religious organizations aren't the only ones that don't have to be certified: any non-academic program is exempt. Orton said the religious groups' demand to keep their exemption in place is rooted in a misunderstanding. "The non-mainstream religions … feel like if we repeal the exemption we will begin regulating religious institutions," she said. "It means the opposite. Now, if an organization wants to establish a program to teach their theology to church members or religious education teachers, they come to us and say they want a religious exemption. We have to look at what they're teaching … and say if they're eligible or not." And that, according to the 2001 attorney general's opinion, is probably an unconstitutional violation of the separation of church and state because it puts the state in the position of determining what qualifies as religious, gives religious groups preferential treatment. The attorney general's opinion wasn't definite enough for ASU-Newport Chancellor Williams, however. Although the assistant attorney general at the July 13 meeting pointed out that only a judge could rule for certain whether the exemption was unconstitutional, Williams said he doesn't think anything short of a "definitive" opinion from the attorney general is reason enough to remove the exemption. "For the state to take the position it's going to eliminate a religious exemption it's had in place for an extended period of time … that's not necessarily the best place we should be spending our time and energy. "It's a perspective issue," he said. "I think if you're truly an individual who aligns with separation of church and state and think there's no gray there, it's black and white, you remove the religious exemption. If you say there are gray areas, then there are times when language is appropriate that allows for exceptions and exemptions."

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