Corrected brief of defendant appellee

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No. 16-1754 IN THE UNITED STATES COURT OF APPEALS SEVENTH CIRCUIT ILLINOIS BIBLE COLLEGES ASS’N, on its own behalf and on behalf of students who seek or may seek religious education from Illinois Bible colleges, PROVIDENCE BAPTIST COLLEGE, DAYSPRING BIBLE COLLEGE & SEMINARY, UNITED FAITH CHRISTIAN INSTITUTE AND BIBLE COLLEGE, CIVIL LIBERTIES FOR URBAN BELIEVERS, and LEIGH PIETSCH, Plaintiffs-Appellants, v.

LINDSAY K.H. ANDERSON, Chair of the Illinois Board of Higher Education, in her Official Capacity, Defendant-Appellee.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 15 C 144

The Honorable SHARON JOHNSON COLEMAN, Judge Presiding.

BRIEF OF DEFENDANT-APPELLEE

LISA MADIGAN Attorney General State of Illinois DAVID L. FRANKLIN Solicitor General RICHARD S. HUSZAGH Assistant Attorney General 100 West Randolph Street 12th Floor Chicago, Illinois 60601 (312) 814-2587 rhuszagh@atg.state.il.us

100 West Randolph Street 12th Floor Chicago, Illinois 60601 (312) 814-3312 Attorneys for Defendant-Appellee

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TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 I.

The Illinois Bible Colleges Association Lacks Standing to Assert the Rights of Non-Plaintiff Students.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II.

The Standard of Review Is De Novo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

III. Plaintiffs’ First Amendment Claims Were Properly Dismissed.. . . . . . . . . . . . . 16 A.

Plaintiffs’ Religious Objection to Government Oversight Does Not Give Them an Unfettered Right Under the Free Exercise Clause or the Establishment Clause to Operate as Degree-Granting Colleges... . . . . 16 1.

Illinois May Regulate Private Entities that Grant Post-Secondary Degrees to Protect the Public... . . . . . . . . . . . . . . . . . 17

2.

Illinois’ laws governing degree-granting institutions do not violate the Free Exercise Clause as applied to Plaintiffs... . . . . . . . . . 22

3.

a.

Illinois’ laws regarding degree-granting institutions satisfy the Free Exercise Clause as neutral laws of general application.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

b.

Illinois’ laws concerning degree-granting institutions are not subject to strict scrutiny under the Free Exercise Clause. . . . . . 25

c.

Illinois’ laws concerning degree-granting institutions properly advance a compelling public interest. . . . . . . . . . . . . . . 30

Illinois laws regarding degree-granting institutions do not violate the Establishment Clause as applied to Plaintiffs.. . . . . . . . . . . . . . . . 33

i

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a.

Legislative Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

b.

Primary Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

c.

Excessive Entanglement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

d.

The Acts’ grandfather clauses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

The First Amendment’s Protections of Speech and Association Do Not Give Plaintiffs the Right to Issue College Degrees Free from Any Government Oversight. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 1.

The Free Speech Clause Does Not Nullify State Oversight of Degree-Granting Institutions of Higher Education. . . . . . . . . . . . . . . 46

2.

State Licensing of Degree-Granting Institutions Does Not Infringe Protected Rights of Expressive Association. . . . . . . . . . . . . . 50

IV. The Grandfather Clauses in the 1945 and 1961 Acts Do Not Violate Plaintiffs’ Right to Equal Protection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

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TABLE OF AUTHORITIES Cases

Page(s)

Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602 (4th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Agostini v. Felton, 521 U.S. 203 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39, 42-43 American Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 567 F.3d 278 (6th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 BBL, Inc. v. City of Angola, 809 F.3d 317 (7th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Beverly v. Abbott Labs., 817 F.3d 328 (7th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50-51 Board of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Bonte v. U.S. Bank, N.A., 624 F.3d 461 (7th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Bowen v. Kendrick, 487 U.S. 589 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-37, 39 Brooks v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Carter v. Peters, 26 F.3d 697 (7th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Center for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm. of New York, 447 U.S. 557 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

iii

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Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27, 30 Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658 (1st Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Commack Self-Serv. Kosher Meats, Inc. v. Hooker, 680 F.3d 194 (2d Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Commonwealth v. New England College of Chiropractic, Inc., 108 N.E. 895 (Mass. 1915). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Davis K. v. Lane, 839 F.2d 1265 (7th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Doe v. Elmbrook School Dist., 687 F.3d 840 (7th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34, 35 Employment Division v. Smith, 494 U.S. 872 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-29, 36 Fellowship Baptist Church v. Benton, 815 F.2d 485 (8th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 41 Fleischfresser v. Directors of Sch. Dist. 200, 15 F.3d 680 (7th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 42 Florida Bar v. Went For It, 515 U.S. 618 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Fortress Bible Church v. Feiner, 694 F.3d 208 (2nd Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26 Freedman v. State Bd. of Accountancy, 370 So. 2d 1168 (Fla. Dist. Ct. App. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 HEB Ministries, Inc. v. Texas Higher Education Coordinating Board, 235 S.W.3d 627 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . 32-33, 35-36, 42, 48 Hines v. Alldredge, 783 F.3d 197 (5th Cir.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Hodak v. City of St. Peters, 535 F.3d 899 (8th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 iv

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Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 S. Ct. 706 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27-30 Ibanez v. Florida Dep’t of Bus. & Prof. Regulation, 512 U.S. 136 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Illinois Health Univ. v. People, 46 N.E. 737 (Ill. 1897). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 In re Portugal, 129 A.2d 450 (N.J. App. Div. 1957).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 In the Matter of Joseph Jayko Trading As Cramwell Inst., 55 F.T.C. 242 (1958).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Institute for Creation Research Graduate School v. Texas Higher Educ. Coordinating Bd., 2010 WL 2522529 (W. D. Tex. 2010). . . . . . . . 20, 32, 49 Inst. of the Metropolis v. Univ. of State of N.Y., 289 N.Y.S. 660 (N.Y. Sup. Ct.), aff’d, 291 N.Y.S. 893 (N.Y. App. Div. 1936), aff’d, 10 N.E.2d 521 (N.Y. 1937) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Larson v. Valente, 456 U.S. 228 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Lawline v. Am. Bar Ass’n, 956 F.2d 1378 (7th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Lemon v. Kurtzman, 403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 33-41, 45 Liberty Univ., Inc. v. Lew, 733 F.3d 72 (4th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731 (7th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

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Locke v. Shore, 634 F.3d 1185 (11th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Lone Star Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Lowe v. S.E.C., 472 U.S. 181 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Marusic Liquors, Inc. v. Daley, 55 F.3d 258 (7th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Mass. Ass’n of Private Career Sch. v. Healey, 159 F. Supp. 3d 173 (D. Mass. 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Massey v. Wheeler, 221 F.3d 1030 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 McCann v. City of Chicago, 968 F.2d 635 (7th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 McCarthy v. Fuller, 810 F.3d 456 (7th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-44 McCreary County Kentucky v. ACLU of Kentucky, 545 U.S. 844 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Milwaukee Deputy Sheriffs’ Ass’n v. Clarke, 588 F.3d 523 (7th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Moore-King v. Cty. of Chesterfield, Va., 708 F.3d 560 (4th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599 (4th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 43 Mueller v. Allen, 463 U.S. 388 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39 Nat’l Ass’n for the Advancement of Multijurisdiction Practice v. Castille, 799 F.3d 216 (3d Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 vi

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Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Nat’l Comm’n on Egg Nutrition v. F.T.C., 570 F.2d 157 (7th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 N.J.-Philadelphia Presbytery of the Bible Presbyterian Church v.

N.J. State Bd. of Higher Educ., 654 F.2d 868 (3d Cir. 1980). . . . . . . . . . 20, 21, 31 New Jersey State Bd. of Higher Educ. v. Board of Directors of Shelton College, 448 A.2d 988 (N.J. 1982) . . . . . . . . . 19, 22, 25, 31, 35, 40, 41 New Life Baptist Church Academy v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 30, 33, 40, 41 New Orleans v. Dukes, 427 U.S. 297 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Nova Univ. v. Educ. Inst. Licensure Comm’n, 483 A.2d 1172 (D.C. App. 1984). . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21, 22, 44, 48 Ohio Ass’n of Independent Schools v. Goff, 92 F.3d 419 (6th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435 (3d Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Powers v. Ohio, 499 U.S. 400 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49-50 vii

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Reynolds v. United States, 98 U.S. 145 (1878). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Roemer v. Board of Public Works of Md., 426 U.S. 736 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Rollins v. Dignity Health, 830 F.3d 900 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Royalton Coll., Inc. v. State Bd. of Educ., 251 A.2d 498 (Vt. 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Shelton College v. State Bd. of Educ., 226 A.2d 612 (N.J. 1967). . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19, 20, 21, 22, 48, 51 Sheridan Rd. Baptist Church v. Dep’t of Educ., 348 N.W.2d 263 (Mich. App. 1984), aff’d, 396 N.W.2d 373 (Mich. 1986). . . . . . . . . . . . . . . . . 31, 42 Sherman v. Consol. School Dist. 21, 8 F.3d 1160 (7th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616 (7th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Stapleton v. Advocate Health Care Network, 817 F.3d 517 (7th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 State v. Faith Baptist Church, 301 N.W.2d 571 (Neb. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 State v. Shaver, 294 N.W.2d 883 (N.D. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 State ex inf. Otto v. St. Louis Coll. of Physicians & Surgeons, 295 S.W. 537 (Mo. 1927). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21 State ex rel. Atty. Gen. v. Mt. Hope Coll. Co., 58 N.E. 799 (Ohio 1900). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 State ex rel. McLemore v. Clarksville School of Theology, 636 S.W.2d 706 (Tenn. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 30, 31, 35, 42 Thomas v. Collins, 323 U.S. 516 (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47 viii

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Townshend v. Gray, 19 A. 635 (Vt. 1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 22 Trustees of Dartmouth Coll. v. Woodward, 4 Wheat. (17 U.S.) 518 (1819). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20 United States v. Benson, 561 F.3d 718 (7th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 United States v. Indianapolis Baptist Temple, 224 F.3d 627 (7th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 28, 38, 41 United States v. Olofson, 563 F.3d 652 (7th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Valley Christian Sch. v. Montana High Sch. Ass’n, 86 P.3d 554 (Mont. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Vision Church, United Methodist v. Village of Long Grove, 468 F.3d 975 (7th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 30, 32, 38 Young v. Ricketts, 825 F.3d 487 (8th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Constitutional Provisions, Statutes and Court Rules U.S. Const. amend. I.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 20 U.S.C. § 1001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15 Fed. R. Civ. P. 58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 F.R.A.P. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 34 C.F.R. § 600.4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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105 ILCS 426/15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 35 105 ILCS 426/20.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 105 ILCS 426/30.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 35 110 ILCS 1005/1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 110 ILCS 1005/2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 110 ILCS 1005/4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 110 ILCS 1005/12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 110 ILCS 1010/0.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 110 ILCS 1010/1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 22 110 ILCS 1010/2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 110 ILCS 1010/3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 110 ILCS 1010/4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 110 ILCS 1010/7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 110 ILCS 1010/10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 23 Ill. Admin. Code ยง 1030.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 23 Ill. Admin. Code ยง 1030.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 23 Ill. Admin. Code ยง 1030.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 25 23 Ill. Admin. Code ยง 1095.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 35 23 Ill. Admin. Code ยง 1095.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 35 Other Authorities Judith Areen, Governing Board Accountability: Competition, Regulation, and Accreditation, 36 Jl. of College. & Univ. Law 691 (2010). . . . . . . . . . . . . . . . 17-18, 20, 21, 22, 24

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George Gollin, et. al., Complexities in Legislative Suppression of Diploma Mills, 21 Stan. L. & Pol’y Rev. 1, 10-17 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Alan Contreras, The legal basis for degree-granting authority in the United States (2009) at 4-9 (available at www.sheeo.org/sites/default/ files/publications/Contreras2009-10-LegalDegreeGranting.pdf). . . . . . . 20, 21, 25 Annotation: Validity of state regulation of curriculum and instruction in private and parochial schools, 18 A.L.R.4th 649 (1982 & Supp.). . . . . . . . . . . . . 31 Webster’s Third New Int’l Dictionary p. 594 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . 18 http://providencebaptistcollege.com/academics/majors/. . . . . . . . . . . . . . . . . . . . . . . . . 10 http://providencebaptistcollege.com/wp-content/uploads/2011/12/ Providence-Catalogue.pdf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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JURISDICTIONAL STATEMENT Plaintiffs-appellants’ jurisdictional statement is not complete and correct. The district court had subject matter jurisdiction of this action under 28 U.S.C. §§ 1331, 1367. Plaintiffs, including three religious schools, sought relief under 42 U.S.C. § 1983 based on the claim that Illinois laws regulating the ability to issue post-secondary degrees and to operate as a degree-granting institution violate their rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

(Doc. 19.) Plaintiffs also asserted state-law claims within the court’s supplemental jurisdiction (id.), but it later voluntarily dismissed those claims (Doc. 32 at 10; Doc. 38 at 4). As discussed in Section I of the Argument, one of the plaintiffs, the Illinois Bible Colleges Association, lacked standing to assert claims, as it alleged, on behalf of prospective students of similar post-secondary schools, and the district court therefore lacked jurisdiction over those claims.

This Court has jurisdiction of this appeal under 28 U.S.C. § 1291. On March 28, 2016, the district court issued its final judgment pursuant to Fed. R. Civ. P. 58, dismissing the case in its entirety and terminating the action. (Doc. 38 at 14, Doc. 39.)

That judgment was entered on the district court docket the same day. No motion was filed seeking a new trial or amendment of the judgment. Appellant’s notice of appeal, filed on April 5, 2016 (Doc. 40), was timely under F.R.A.P. 4(a)(1)(A).

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ISSUES PRESENTED FOR REVIEW The plaintiff schools, which offer post-secondary education that incorporates a religious perspective, desire the economic benefits of being able to grant bachelor’s, master’s, and doctoral degrees but object on religious grounds to any government oversight of their educational programs. This appeal raises the following issues: 1.

Whether the Illinois Bible Colleges Association, an association of religious

schools that offer post-secondary education, lacks standing to assert claims on behalf of prospective students of such schools.

2.

Whether the plaintiff schools’ religious objection to government oversight

entitles them, under the Free Exercise Clause or the Establishment Clause of the First Amendment, to issue post-secondary degrees free from government oversight to ensure the adequacy of their faculties, facilities, and courses.

3.

Whether the plaintiff schools have the right, under the First Amendment’s

protection of speech or association, to issue post-secondary degrees without being subject to government oversight to ensure the adequacy of their faculties, facilities, and courses.

4.

Whether the “grandfather clauses” in Illinois’ licensing statutes for degree-

granting colleges and universities, which exempt the operations of such schools that were established before 1945 and 1961, respectively, violate the Equal Protection Clause of the Fourteenth Amendment.

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STATEMENT OF THE CASE Introduction Plaintiffs include three private colleges that offer post-secondary education in religion and in other subjects from a religious perspective based on the Christian Bible.

(Doc. 19 at 3, ¶¶ 7-9.) Two other plaintiffs are associations that represent, respectively, religious schools and churches that seek to engage in educational ministry. (Id. at 2-3, ¶¶ 6, 10.) The last plaintiff is a student enrolled in an unaccredited institution of higher education centered on biblical principles. (Id. at 2, ¶ 11.) (“Plaintiffs” in this brief refers to all of the plaintiffs except where the context indicates it refers only to the three colleges.)

In this action, Plaintiffs seek a blanket exemption from Illinois statutes and implementing regulations that prohibit them from issuing bachelor’s, master’s and doctoral degrees without certification from the Illinois Board of Higher Education (the “Board”). (Id. at 2, 19-20.) These statutes and regulations authorize the Board to license private schools that grant post-secondary degrees. Certification is based on secular criteria relating to the schools’ faculty, facilities, and courses. (Id. at 6-12; see also below at 4-8.)

Plaintiffs have never sought certification from the Board. (Doc. 19 at 2.) Nor have they alleged that the Board relies on any criteria that favor secular schools over religious ones, or that favor schools with some religious beliefs over others. (Id. at 6-12.)

They have alleged that Plaintiffs, their students, and those students’ prospective employers want the economic benefits that go along with the issuance of college

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“degrees,” but that Plaintiffs object on religious grounds to any government oversight or approval of their operations. (Id. at 12, 18, ¶¶ 47, 78; Doc. 19-5 at 4, ¶ 11; Doc. 32 at 16; Pl. Br. 33.) Plaintiffs assert that such regulatory oversight, as applied to them, violates their rights under the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment, as well as the First Amendment’s protection of expressive association. (Doc. 19 at 14-17.) Plaintiffs also assert that the relevant statutes violate the Equal Protection Clause of the Fourteenth Amendment because they contain “grandfathering” provisions that exempt the operations of private post-secondary educational institutions established before 1945 and 1961, respectively. (Id. at 18.)

Defendant Lindsay K. Anderson, the Board’s Chair, moved to dismiss Plaintiffs’ complaint for failure to state a claim. (Docs. 24, 25.) The District Court granted that motion. (Doc. 38.)

Illinois Laws Regulating Private Degree-Granting Institutions As noted, Plaintiffs challenge several Illinois statutes and implementing regulations that apply to both secular and religious private colleges.

The Private College Act The Private College Act, 110 ILCS 1005/0.01 et seq., enacted in 1945 (the “1945 Act”), provides that any “privately-operated college, junior college, or university that offers degrees and instruction above the high school level” and that was not in operation on July 17, 1945, must have a “certificate of approval” from the Board to “operate” in Illinois. 110 ILCS 1005/1, 2. The 1945 Act defines a “degree” as “any designation, appellation, series of letters or words, or other symbol which signifies or purports to

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signify that the recipient thereof has satisfactorily completed an organized academic program of study beyond the secondary school level.” 110 ILCS 1005/1. Section 4 of the 1945 Act directs the Board, as part of the approval process, to determine whether “each course of instruction . . . is adequate, suitable, and proper”; that the school has “an adequate physical plant and adequate facilities”; that “the members of the teaching staff are adequately prepared to fulfill their instructional obligations”; and that the institution does not make fraudulent inducements, promises it lacks the means to perform, or unlawful promises concerning “any right or privilege in respect to professional examinations or to the practice of any profession.” 110 ILCS 1005/4. Decisions by the Board under the 1945 Act are subject to judicial review. 110 ILCS 1005/12.

The Academic Degree Act The Academic Degree Act, 110 ILCS 1010/0.01 et seq., originally enacted in 1961 (the “1961 Act”), declares a state policy “to prevent deception of the public resulting from the offering, conferring, and use of fraudulent or substandard degrees.” 110 ILCS 1010/1. The express legislative policy of the 1961 Act further states: Since degrees are constantly used by employers in judging the training of prospective employees, by public and private professional groups in determining qualifications for admission to and continuance of practice, and by the general public in assessing the extent of competence of persons engaged in a wide range of activities necessary to the general welfare, regulation by law of such evidences of academic achievement is in the public interest.

To the same end, the protection of legitimate institutions and of those holding degrees from them is also in the public interest.

Id.

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In furtherance of this policy, Section 3 of the 1961 Act provides that a “[d]egree . . . may be awarded only by a degree granting institution.” 110 ILCS 1010/3. Section 4 specifies that a degree granting institution may not issue degrees without Board approval unless it was authorized to operate before August 15, 1961. 110 ILCS 1010/4.

The 1961 Act defines a “degree” in the same way as the 1945 Act. 110 ILCS 1010/2(b).

And it defines a “degree granting institution” as a private “educational facility . . . operating as any “junior college, college, university” or other school that furnishes “instruction leading toward . . . an academic or professional degree beyond the secondary school level” and that requires the recipient to “satisfactorily complete an appropriate course of class, laboratory or research study in person under a faculty whose members hold appropriate academic degrees or whose members possess appropriate moral, intellectual and technical skill and competence.” 110 ILCS 1010/2(a). Section 7 of the 1961 Act provides that Board approval of a degree-granting institution means only that “the institution is authorized to confer academic degrees” and does not “mean that the Board has passed upon the relative merits of a particular course of instruction.” 110 ILCS 1010/7. Board decisions pursuant to the 1961 Act are subject to judicial review.

110 ILCS 1010/10.

The Board’s Regulations Implementing the 1945 and 1961 Acts The Board issued regulations to implement the policies of the 1945 and 1961 Acts.

23 Ill. Admin. Code §§ 1030.10 et seq. These regulations specify that private schools required to obtain Board approval under the 1945 and 1961 Acts include schools that offer “degrees or credit bearing instruction in Illinois above the high school level.” 23

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Ill. Admin. Code §§ 1030.10(a)(1), (b)(1). The regulations define “degree” in the same way as the 1945 and 1961 Acts. 23 Ill. Admin. Code § 1030.20. They further define an “organized academic program of study beyond the secondary school level” as: Any academic program, regardless of duration, that offers any designation, appellation, series of letters or words or other symbol known as or labeled as an associate degree, a bachelor’s degree, a master’s degree, a doctor’s degree, a professional degree or a certificate of advanced study; or Any academic program of more than 12 months in duration, except for a program that is devoted entirely to religion or theology, or a program offered by any institution operating under the authority of the Private Business and Vocational Schools Act . . . .

Id. The regulations’ standards for Board approval of a degree-granting institution set forth criteria relating to the description of degree programs and credit hour requirements for different degrees (including for Baccalaureate, Master’s, and Doctor’s degrees); student admission standards; the “caliber and content of each course or program of instruction”; the institution’s “capacity to develop, deliver, and support academic programs”; rates of student progression and graduation; adequate space, equipment and instructional materials; record-keeping practices; and faculty credentials, including academic credentials for professors teaching at different undergraduate and graduate levels of instruction, subject to exceptions for professional experience. 23 Ill. Admin. Code § 1030.30; see also 23 Ill. Admin. Code § 1030.20 (defining a “credit hour”).

The Private Business and Vocational Schools Act of 2012 The Private Business and Vocational Schools Act of 2012, 105 ILCS 426/1 et seq.

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(the “2012 Act”), and the Board’s regulations implementing that Act, govern private business and vocational schools that provide education or training for a “trade or artistic occupation” or a “manual, mechanical, technical, industrial, business, commercial office, personal service (other than nursing) or other non-professional occupation.” 105 ILCS 426/15; 23 Ill. Admin. Code § 1095.20. Such schools require operating approval from the Board, which subjects them to licensing standards and regulatory oversight similar to the oversight for private colleges and universities. 105 ILCS 426/20; 23 Ill. Admin. Code §§ 1095.20 to 1095.40. Approved schools may issue “certificates of completion” or “certificates,” 105 ILCS 426/15, which are defined to distinguish them from post-secondary “degrees” issued by colleges and universities. The 2012 Act, like the Board’s regulations, provides an exemption for “any institution devoted entirely to the teaching of religion or theology.” 105 ILCS 426/15, 30; see also 23 Ill. Admin. Code §§ 1095.20(b)(1), 1095.30.

Plaintiffs’ Complaint The claims dismissed by the district court were contained in Plaintiffs’ First Amended Complaint (the “complaint”). (Docs. 19, 38 at 1.) Plaintiffs attached to their complaint several exhibits, including declarations by Michael Hall, the Vice President of plaintiff Providence Baptist College (“Providence”); Jim Scudder, Jr., the President of plaintiff Dayspring Bible College and Seminary (“Dayspring”); Reginald J. Saffo, the Dean and President of plaintiff United Faith Christian Institute and Bible College (“United Faith ”); Arthurine Wilkinson, President of plaintiff Civil Liberties for Urban Believers (“CLUB”); and plaintiff Leigh Pietsch, a student at Charis Bible College. The

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complaint included five counts alleging that the 1945 Act, the 1961 Act and the 2012 Act (the “Acts”) violate Plaintiffs’ rights under various constitutional provisions.

The complaint’s central assertion is that Plaintiffs have a religious objection to government oversight and, as a consequence, should be totally exempt from Illinois’ laws requiring them to obtain Board approval as a condition to being able to grant degrees and operate as degree-granting institutions. (Doc. 19 at 12, 15, ¶¶ 47, 56.) Thus, Paragraph 47 of the complaint alleges: •

“Seeking State approval would abdicate the Church’s ultimate authority to guide the teaching of the College”;

•

“Obtaining State approval would subordinate to the State and to the [Board] the Church’s responsibility to God in deciding how to properly educate students in religious teaching and in deciding who should do the teaching”;

•

“The College’s religious education is predicated on the Bible and it does not wish to ascribe [sic] to the dictates of secular educational regulations”;

•

“Obtaining State approval to operate and grant degrees would impose requirements which would obstruct the College’s mission to instruct students according to the tenets of our faith by telling the College who is and who is not qualified to offer religious instruction at the College.”

(Doc. 19 at 12, ¶ 47.) The relief sought includes a declaratory judgment that: •

“Illinois Bible colleges may create and operate religious post-secondary degree granting educational institutions without obtaining State approval from the [Board]”;

•

“the Illinois Bible colleges are allowed to operate and can grant the same types of degrees that privileged ‘grandfathered’ schools grant so long as the education incorporates significant religious or faith based instruction and is part of a comprehensive program to equip the 9

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student to integrate his or her religion or faith into his or her life, career, or work”; and •

“the Constitutional Provisions . . . allow religious post-secondary educational institutions in Illinois to operate as colleges and to use the terms ‘Associate’s,’ ‘Bachelor’s,’ ‘Master’s,’ or ‘Doctorate’ in the granting of degrees.”

(Id. at 19-20.)

In support of this requested relief, the complaint alleges that Plaintiffs offer postsecondary education that gives students “knowledge and practical experience necessary for integrating their religion or faith into their life, career, or work.” (Id. at 5, ¶¶ 15-16.)

The complaint acknowledges that Plaintiffs’ curriculum includes courses in subjects that are not limited to religion and theology (e.g., courses in office skills, building construction, and cooking), but Plaintiffs assert that these courses are “taught from a specific Biblical perspective.” (Doc. 32 at 32; see also Pl. Br. 42 (“every course is taught from a religious perspective”.) Thus, according to Plaintiffs, “the stated degree objectives of the Bible colleges and their degree programs are inherently religious.” (Pl. Br. 42 (“every 1

course is taught from a religious perspective”.)

1

Hall’s declaration attached to the

Providence’s website notes that it offers two- and four-year certificates in such areas as Graphic Design, Church Secretarial Science, Music Education, and Secondary Christian Education. (http://providencebaptistcollege.com/academics/majors/, accessed Oct. 14, 2016.)

Its academic catalog includes courses at various levels in word processing, graphics, business communications, personal finance, church finance, computer accounting, Microsoft Excel, Microsoft Access, church construction, school administration and finance, teaching methods, teaching reading, language, arithmetic, art, music, science, and history, learning disabilities, grammar and composition, American and British literature, creative writing, Spanish, U.S. and world history, algebra, geometry, trigonometry, calculus, astronomy, geology, general and organic chemistry, botany, zoology, physics, physical education, coaching school athletics, cooking, home maintenance, and music theory, history, pedagogy, and conducting. (http://providencebaptistcollege.com/wp-content/uploads/2011/12/Providence-Catalogue.pdf, accessed Oct. 14, 2016.)

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complaint states that Providence “offers programs in religious subjects only,” that its courses are “primarily religious,” and that it “does not offer any purely secular courses, as all courses are taught from a specific Biblical basis and Christian perspective.”

(Doc. 19-1 at 2-3.) The declarations by Scudder, Saffo, and Pietsch contain similar statements. (Docs. 19-2 at 2-3, 19-3 at 2-3, 19-5 at 2.)

Plaintiffs further allege that the inability to grant degrees has burdened them in various ways, including: •

“Reducing the attractiveness of the colleges to potential students and their parents as well as the loss of actual students”;

•

“Diminishing marketing appeal to potential donors/supporters and thus limiting fundraising efforts”;

•

“Restricting the colleges’ ability to compete against State approved schools or similar out-of-state schools.”

(Doc. 19 at 13, ¶ 48.) The declarations attached to the complaint state that the plaintiff schools’ inability to grant “degrees” makes it more difficult for them to “attract quality students” and to “compete” with other schools that do grant degrees. (Docs. 19-1 at 6; 19-2 at 2, 6; 19-3 at 2, 5.) Scudder’s declaration states that Dayspring’s inability to grant degrees “has caused students to leave the College for other colleges that do grant degrees.” (Doc. 19-2 at 6.) And Pietsch asserts that his inability to obtain a degree from Charis Bible College, which is “not accredited by any agency” or approved to offer degrees, “limits my marketability.” (Doc. 19-5 at 3.)

Wilkinson’s declaration states that CLUB is an association of churches that provide educational ministries, that it seeks to promote religious education “that encompasses everything from Sunday School to postsecondary education,” and that 11

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many of the ministries provided by CLUB’s member churches “cannot withstand the cost and burdens of secular regulations.” (Doc. 19-4 at 2.)

District Court Proceedings Defendant Anderson moved to dismiss Plaintiffs’ complaint under Fed. R. Civ. P. 12(b)(6) on the ground that it failed to state a claim. (Docs. 24, 25.) After briefing, the district court granted the motion and entered judgment against Plaintiffs. (Docs. 32, 33, 38, 39.) Plaintiffs appealed. (Doc. 40.)

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SUMMARY OF ARGUMENT The First Amendment does not protect the right to confer college degrees without any government oversight. A “degree” has a longstanding, well-established, and legally recognized meaning: it is a title granted by a college, university, or professional school upon completion of a program of study requiring a minimum number of courses.

Conferral of a degree carries with it not just a sense of academic accomplishment for the person who earns it, but also a significant economic benefit to both the students and the institution. In light of that benefit, and to protect legitimate colleges and universities, students, employers, and the public at large from the negative effects of fraudulent or substandard degrees, Congress and every State have enacted laws to license and regulate degree-granting institutions. Such laws have been routinely upheld against constitutional challenges, and the same outcome is warranted here. The contrary result requested by Plaintiffs would allow every self-described “college” or “university” to grant bachelor’s, master’s, and doctoral “degrees,” contrary to the traditional meaning of those terms, without any government oversight. Nothing in the First Amendment requires such a result, which would effectively nullify government’s historic power to regulate higher education in the public interest.

In particular, the Illinois laws challenged by Plaintiffs do not violate the Free Exercise Clause. They are neutral laws of general application and are rationally related to a legitimate public interest. Indeed, a large body of precedent impels the conclusion that these laws, even if subject to heightened scrutiny, are valid. Illinois has a compelling interest in protecting students, employers, legitimate colleges, and the general

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public from fraudulent or substandard post-secondary degrees, and these laws, which apply equally to secular and religious schools based on secular criteria, represent a narrowly tailored means to promote that interest.

Illinois’ challenged laws also respect the constitutional prohibition against the establishment of religion. These laws have neither the purpose nor the principal effect of favoring or disfavoring religion. Nor do these laws, as applied to Plaintiffs, entail an excessive government entanglement with religion; they specify purely secular criteria for evaluating both religious and nonreligious colleges, and Plaintiffs have refused even to apply for approval to operate as degree-granting institutions.

Plaintiffs’ free speech and right-of-association claims under the First Amendment fare no better. The States have a well-established authority to regulate post-secondary education and to determine what schools may operate as degree-granting institutions.

The incidental effect on speech of that regulation, which protects against misleading representations by preventing entities from granting “degrees” based on fraudulent or substandard academic requirements, does not violate the Free Speech Clause. Nor does it violate any right of expressive association held by Plaintiffs, their faculty, or students.

Finally, the grandfather clauses in the 1945 and 1961 Acts do not discriminate against protected religious practices or speech and, therefore, do not violate the Equal Protection Clause.

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ARGUMENT I.

The Illinois Bible Colleges Association Lacks Standing to Assert the Rights of Non-Plaintiff Students.

The Illinois Bible Colleges Association purported to bring claims not only for

itself, but also on behalf of “students who seek or may seek religious education from Illinois Bible colleges.” (Doc. 19 at 1, 4.) It lacks standing to assert claims on behalf of any students, however, because it is an association of schools, not students, and the presence of plaintiff Leigh Pietsch, a student, negates any basis to find that such students are so “hindered” in the ability to bring claims on their own behalf that a third party may have standing to do so. See Massey v. Wheeler, 221 F.3d 1030, 1032-35 (7th Cir. 2000) (holding that attorney lacked standing to bring a claim on behalf inmate because he also “brought his own claim” before administrative agency); see also Hodak v. City of St. Peters, 535 F.3d 899, 904-05 (8th Cir. 2008) (noting agreement among circuits and stating that “if a third party actually asserts his own rights, no hindrance exists”); see generally Powers v. Ohio, 499 U.S. 400, 410-11, 414-15 (1991).

II.

The Standard of Review Is De Novo.

The district court’s judgment is subject to de novo review because it granted a

motion to dismiss under Rule 12(b)(6), see Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010), and because the operative issues in this case, involving the constitutional validity of state statutes, present questions of law, see Center for Individual Freedom v.

Madigan, 697 F.3d 464, 476 (7th Cir. 2012); United States v. Olofson, 563 F.3d 652, 659 (7th Cir. 2009); see also New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940, 941-42 (1st Cir. 1989) (holding that First Amendment questions of “constitu15

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tional fact” are subject to de novo review) (citation omitted).

III.

Plaintiffs’ First Amendment Claims Were Properly Dismissed.

Plaintiffs launch a sweeping attack on Illinois’ authority to regulate the issuance

of post-secondary degrees and the operations of private entities that grant such degrees.

These claims lack merit and were properly dismissed.

A.

Plaintiffs’ Religious Objection to Government Oversight Does Not Give Them an Unfettered Right Under the Free Exercise Clause or the Establishment Clause to Operate as Degree-Granting Colleges.

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I. Plaintiffs’ principal claim is that these constitutional protections against laws that establish religion or prohibit the free exercise of religion give them the right to grant post-secondary academic degrees free from any oversight of their faculties, facilities, or courses. That is a vast overreading of these constitutional guarantees.

The religion clauses of the First Amendment provide robust protections for Plaintiffs’ ability to teach their religious beliefs, but not to operate post-secondary schools that issue college degrees upon completion of a program of academic studies. Given the State’s long-recognized, legitimate interests in regulating higher education in the public interest, the activity of granting post-secondary academic degrees and offering collegelevel credits toward such degrees may be subject to reasonable licensing laws designed to ensure that degree-granting institutions of higher education, their faculties, and their academic courses meet minimum criteria of adequacy.

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Illinois May Regulate Private Entities that Grant Post-Secondary Degrees to Protect the Public.

Apart from any constitutional right Plaintiffs may have to teach willing students the tenets of their faith and other academic subjects from a faith-based perspective, they have no similar right to issue college degrees or to operate a degree-granting institution of higher education without government approval or oversight. The Acts permissibly regulate the activity of issuing degrees, while leaving Plaintiffs free to teach religious beliefs as they desire.

Education at all levels has long been a legitimate subject of government action.

See Trustees of Dartmouth Coll. v. Woodward, 4 Wheat. (17 U.S.) 518, 634 (1819) (Marshall, C.J.) (“That education is an object of national concern, and a proper object of legislation, all admit.”); Lemon v. Kurtzman, 403 U.S. 602, 613 (1971) (“A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate.”); Board of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 24546 (1968) (“a substantial body of case law has confirmed the power of the States to insist that attendance at private schools . . . be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction”); see also Shelton Coll. v. State Bd. of Educ., 226 A.2d 612, 617-20 (N.J. 1967) (“Shelton College I”) (surveying history of public regulation of education). Such government oversight embraces private institutions of higher education, as well as primary and secondary education. See, e.g., Shelton College I, 226 A.2d at 617-20; Judith Areen, Governing Board Accountability: Competition, Regulation, and Accreditation, 36

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2

Jl. of College. & Univ. Law 691, 716-18 (2010) (“Areen”).

The successful culmination of post-secondary studies is typically marked by conferral of a “degree,” which has a long-established and well-recognized meaning. See Webster’s Third New Int’l Dictionary p. 594 (1961) (defining “degree” as a “title conferred upon students by a college, university, or professional school upon completion of a unified program of study carrying a specified minimum of credits, passing of certain examinations, and often completion of a thesis or other independent research project.”); see also Shelton College I, 226 A.2d at 617-20; Commonwealth v. New England Coll. of Chiropractic, Inc., 108 N.E. 895, 895-97 (Mass. 1915); Freedman v. State Bd. of Accountancy, 370 So. 2d 1168, 1168-70 (Fla. Dist. Ct. App. 1979); In re Portugal, 129 A.2d 450, 453 (N.J. App. Div. 1957); In the Matter of Joseph Jayko Trading As Cramwell Inst., 55 F.T.C. 242, 251-54, 259-60, 264-65 (1958); 20 U.S.C. § 1001(a)(2) (referring to an institution that “awards a bachelor’s degree” or “a degree that is acceptable for admission to a graduate or professional degree program”); 34 C.F.R. § 600.4 (including, in definition of “institution of higher education,” that it “[p]rovides an educational program . . . [f]or which it awards an associate, baccalaureate, graduate, or professional degree”).

2

This government oversight is recognized by federal law. See, e.g., 20 U.S.C. § 1001(a)(2) (defining “institution of higher education” in any State to include one that “is legally authorized within such State to provide a program of education beyond secondary education” and “provides an educational program for which the institution awards a bachelor’s degree” or a minimum two-year program “that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program . . . .”).

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Consistent with this established meaning, a degree has economic value over and above the knowledge and skills acquired in obtaining it. See, e.g., New Jersey State Bd. of Higher Educ. v. Bd. of Dirs. of Shelton Coll., 448 A.2d 988, 996 (N.J. 1982) (“Shelton College II”) (stating that “the value of academic degrees from New Jersey institutions,” which “connote[] that certain minimum standards have been met by the issuing institution, and that the degree recipient has attained at least a basic level of academic proficiency[,] . . . traces directly to state regulation”); Townshend v. Gray, 19 A. 635, 636 (Vt. 1890) (stating that the “legal character” of a medical degree, by attesting that recipient has “successfully mastered the curriculum” of an institution “by law authorized” to issue it, “gives it a moral and material credit in the estimation of the world, and makes it thereby a valuable property right of great pecuniary value”). Indeed, Plaintiffs themselves emphasize that they seek the ability to issue college degrees because their students’ prospective employers prefer candidates with college degrees, these students therefore wish to obtain such degrees to make themselves more “marketable,” and Plaintiffs’ inability to grant degrees puts them at a competitive disadvantage compared to other schools. (Docs. 19 at 18, ¶ 78; Doc. 19-5 at 4, ¶ 11; Pl. Br. 33.)

All States, as well as Congress, have exercised their sovereign authority to determine what institutions may grant college and university degrees. See Nova Univ. v.

Educ. Inst. Licensure Comm’n, 483 A.2d 1172, 1176, 1180 (D.C. App. 1984); Shelton College I, 226 A.2d at 617-20; Shelton College II, 448 A.2d at 992; State ex rel. McLemore v. Clarksville Sch. of Theology, 636 S.W.2d 706, 708 (Tenn. 1982); Townshend, 19 A. at 636-37; Institute for Creation Research Graduate Sch. v. Texas Higher Educ. Coordi-

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nating Bd., 2010 WL 2522529, *5-6 (W. D. Tex. 2010); see generally Areen, 36 Jl. of College. & Univ. Law at 716-18; George Gollin, et. al., Complexities in Legislative Suppression of Diploma Mills, 21 Stan. L. & Pol’y Rev. 1, 2 (2010) (“Gollin”); Alan L. Contreras, The legal basis for degree-granting authority in the United States (2009) at 4-9 (available at www.sheeo.org/sites/default/files/publications/Contreras2009-10-Legal DegreeGranting.pdf) (“Contreras”) (accessed October 14, 2016). Those laws protect the public interest by guarding against incompetent and fraudulent academic practices, including by so-called “diploma mills,” which have a long and unsavory history. See Nova Univ., 483 A.2d at 1176-77; Shelton College I, 226 A.2d at 617-20; see also Inst. of the Metropolis v. Univ. of State of N.Y., 289 N.Y.S. 660, 666 (N.Y. Sup. Ct.), aff’d, 291 N.Y.S. 893 (N.Y. App. Div. 1936), aff’d, 10 N.E.2d 521 (N.Y. 1937) (per curiam); Royalton Coll., Inc. v. State Bd. of Educ., 251 A.2d 498, 507 (Vt. 1969); State ex rel. Atty.

Gen. v. Mt. Hope Coll. Co., 58 N.E. 799 (Ohio 1900); Illinois Health Univ. v. People, 46 N.E. 737, 740 (Ill. 1897); see generally Areen, 36 Jl. of College. & Univ. Law at 691, 71618; Gollin, 21 Stan. L. & Pol’y Rev. at 10-17.

For many years, States granted individual charters authorizing individual colleges and universities to grant academic degrees. See Shelton College I, 226 A.2d at 618-24 & nn. 1-2, 5; Nova Univ., 483 A.2d at 1176; N.J.-Philadelphia Presbytery of the Bible Presbyterian Church v. N.J. State Bd. of Higher Educ., 654 F.2d 868, 872-73 (3d Cir. 1980) (“N.J.-Philadelphia Presbytery”); Contreras at 4, 6-9; see also Dartmouth Coll., 4 Wheat. (17 U.S.) at 626; Townshend, 19 A. at 635-36; State ex inf. Otto v. St. Louis Coll. of Physicians & Surgeons, 295 S.W. 537, 542 (Mo. 1927); Illinois Health Univ., 46

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N.E. at 739-40. More recently, as the pursuit of higher education became more prevalent and the incidence of unqualified or fraudulent institutions purporting to issue degrees became more common, States created licensing bodies charged with determining whether to authorize a private entity to grant professional or other post-secondary degrees. See Shelton College I, 226 A.2d at 616, 619-20; Nova Univ., 483 A.2d at 1176; N.J.-Philadelphia Presbytery, 654 F.2d at 873; Areen, 36 Jl. of College. & Univ. Law at 716 (“[M]ost states also have laws that apply specifically to higher education. . . . Most turned to licensing, the same approach used to protect the public from unqualified doctors, lawyers, and other professionals.”); Contreras at 9.

By assuring a minimum level of academic quality, state regulatory licensing and oversight of post-secondary degree-granting institutions protects students from substandard or fraudulent degrees, protects employers and others who rely on the fact that a person has earned a degree, and protects legitimate colleges and universities, whose services and degrees could lose significant value if the market were flooded with inferior substitutes. See N.J.-Philadelphia Presbytery, 654 F.2d at 887 (“New Jersey has a significant interest in protecting both the consumers of education and the public which may rely upon the certification of proficiency implicit in the award of a degree”).

Emphasizing this point in connection with its rejection of a constitutional challenge much like the one in this case, the New Jersey Supreme Court in Shelton College II declared: [I]f an exemption were created here, Shelton College would receive an advantage at the expense of those educational

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institutions that have submitted to state regulation. Such a development would undermine the integrity of the baccalaureate degree, erode respect for the state higher education scheme, and encourage others to seek exemptions.

448 A.2d at 996; see also Shelton College I, 226 A.2d at 618 (noting that allowing state to be flooded with college and professional degrees issued by “any three men in any town in the state, however illiterate or irresponsible,” would resemble the situation threatened by a French minister “‘to create so many dukes that it would be no honor to be one, and a burning disgrace not to be one’”) (quoting Townshend, 19 A. at 636-37).

The 1945 and 1961 Acts implement Illinois’ oversight power. The express declaration of policy in the 1961 Act — stating that it seeks “to prevent deception of the public resulting from the offering, conferring, and use of fraudulent or substandard degrees,” for the benefit of “employers,” “public and private professional groups,” “the general public,” and “legitimate institutions,” as well as “those holding degrees from them,” 110 ILCS 1010/1 — makes clear the State’s purposes, which are unquestionably 3

legitimate.

2.

Illinois’ laws governing degree-granting institutions do not violate the Free Exercise Clause as applied to Plaintiffs.

The district court correctly held that the Free Exercise Clause does not give Plaintiffs the right to issue college degrees or operate a degree-granting institution of higher education free from state licensing and regulatory oversight. Illinois’ challenged 3

The 1961 Act was based on a model statute prepared in 1961 by the Council of State Governments and has counterparts in most States. Nova Univ., 483 A.2d at 1185; see also Areen, 36 Jl. of College. & Univ. Law at 716-17. In 1929, Congress passed a similar statute governing the District of Columbia, which had become a magnet for diploma mills offering degrees of almost every kind. Nova Univ., 483 A.2d at 1176-77.

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statutes and regulations are neutral laws of general application that are rationally related to a legitimate public interest, and therefore satisfy the Free Exercise Clause. a.

Illinois’ laws regarding degree-granting institutions satisfy the Free Exercise Clause as neutral laws of general application.

Plaintiffs’ religious claim for a total exemption from state laws regulating degreegranting colleges is unfounded. “Even religious schools cannot claim to be wholly free from some state regulation.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 628 (1986). Such regulation is constitutional where, as here, it embodies a generally applicable program that is neutral as to religion and rationally serves a valid government interest.

In Employment Division v. Smith, 494 U.S. 872 (1990) (“Smith”), the Supreme Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id. at 879 (citations omitted). Thus, neutral laws of general application need not be justified by a compelling governmental interest to comply with the Free Exercise Clause. Id. at 87682, 886 n.3; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (“Lukumi”); Vision Church, United Methodist v. Village of Long Grove, 468 F.3d 975, 998 (7th Cir. 2006); Fortress Bible Church v. Feiner, 694 F.3d 208, 220 (2d Cir. 2012). As the district court correctly recognized, that principle governs here.

The Illinois laws and related regulations challenged by Plaintiffs are both neutral and generally applicable. They are neutral because they do not target religion or religious institutions. See Lukumi, 508 U.S. at 533-34; see also Listecki v. Official 23

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Comm. of Unsecured Creditors, 780 F.3d 731, 743 (7th Cir. 2015) (holding that Bankruptcy Code provision regarding preferential transfers was a neutral law of general application whose application to church diocese was not subject to heightened scrutiny); United States v. Indianapolis Baptist Temple, 224 F.3d 627, 629 (7th Cir. 2000) (holding that federal employment tax laws are neutral laws of general applicability and rejecting defendant church’s contention that its religious opposition to federal government sovereignty “grants it a right to act in accordance with its beliefs, notwithstanding contrary federal law”). Illinois’ laws governing degree-granting institutions, which incorporate no religious criteria, are neutral on their face, and there is no basis to contend their purpose was to discriminate against any religion or religious practice. See Listecki, 780 F.3d at 743; Indianapolis Baptist Temple, 224 F.3d at 629. These laws are also generally applicable because they apply to secular and religious institutions alike. See Listecki, 780 F.3d at 743; Indianapolis Baptist Temple, 224 F.3d at 629; see also Lukumi, 508 U.S. at 535-36 (law prohibiting ritual animal sacrifice but excluding other acts that inflict mistreatment or death on animals held invalid as a “religious gerrymander”).

Accordingly, these laws are not subject to strict scrutiny.

Plaintiffs do not, and cannot, dispute that the Illinois laws they challenge satisfy the rational basis test. Given the widespread and persistent problem of diploma mills (see above at 20, 22 n.3), these laws protect students from pursuing degrees that have little or no real worth, and they further protect employers against the harm of relying on academic degrees that do not correspond to meaningful aptitude or academic effort.

Areen, 36 Jl. of College. & Univ. Law at 716-17 (discussing, inter alia, discovery that

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hundreds of federal employees had degrees from diploma mills); Contreras at 1-2, 4, 6, 16-17 & n.4. These laws also protect legitimate colleges and universities against the risk that the services they provide will lose their worth in a sea of cheap, inferior substitutes.

See Shelton College II, 448 A.2d at 996. b.

Illinois’ laws concerning degree-granting institutions are not subject to strict scrutiny under the Free Exercise Clause.

There is no merit to Plaintiffs’ contention that the Illinois laws from which they seek a blanket exemption are subject to strict scrutiny under either of the two exceptions recognized in Smith, for (1) laws that invite individualized exemptions from a general requirement, 494 U.S. at 884; and (2) so-called “hybrid” claims, id. at 881-82.

Neither the 1945 Act nor the 1961 Act provides for individualized exceptions to the requirement of Board approval before a school may operate as a degree-granting institution of higher education. Plaintiffs point to sections of the Board’s regulations specifying that “the caliber and content of each course or program of instruction . . . shall be reasonable and adequate,” and that “the education, experience and other qualifications of faculty . . . shall reasonably ensure the students will receive education consistent with the objectives of the course.” (Pl. Br. 10 (quoting 23 Ill. Admin. Code §§ 1030.30(a)(2), (a)(4)).) But these rules implement the general principle, not an individualized exception to it. That a law requires consideration of individual factors, including ones with a subjective component, does not prevent it from being generally applicable. Otherwise, only statutes with automatic consequences based on mechanistic criteria would be subject to the general rule announced in Smith. That is not the case.

See, e.g., Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 S. Ct. 694, 707 25

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(2012) (holding that anti-retaliation provision in Americans with Disabilities Act “is a valid and neutral law of general applicability”); see also Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 764-65 (7th Cir. 2003) (holding that zoning laws’ provision for individualized variances does not prevent them from being generally applicable); Fortress Bible Church, 694 F.3d at 220 (“the majority of circuits that have addressed this question have concluded that zoning laws with the opportunity for individualized variances are neutral laws of general applicability”); Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008) (“General applicability does not mean absolute universality.”). Smith’s treatment of exemptions from a general rule that invite “individualized government assessment of the reasons for the relevant conduct,” 494 U.S. at 884, but would allow denial of an exemption for religiously motivated conduct, therefore cannot aid Plaintiffs.

Plaintiffs home in on one of the Board’s regulations providing that it may make an exception, based on personal experience, to the general requirement that a faculty member have specified academic credentials to be eligible to teach a course at a certain level (e.g., at least a master’s degree to teach an undergraduate class). (Pl. Br. 24-25, 30-31.) But even if that lone regulation were proportional to the far-reaching relief Plaintiffs seek (which it is not), they do not allege that they have applied for such exceptions, much less that the Board has a policy regarding such exceptions that in practice imposes a particular hardship on religiously motivated conduct. Instead, Plaintiffs contend that, based on their religious beliefs, they have the constitutional right to be entirely exempt from any review of their faculty members’ training, credentials,

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and qualifications. The Smith exception for individualized exemptions to general laws cannot be stretched so far.

Plaintiffs’ attempt to invoke Smith’s exception for “hybrid” claims fares no better.

In support of this contention, Plaintiffs perfunctorily invoke their establishment clause, free speech and right-of-association claims. (Pl. Br. 31.) But if those claims were sufficient to subject a law to strict scrutiny regardless of their plausibility, the central holding in Smith could be easily circumvented. As this Court has explained, if a party’s other constitutional claims lack any serious merit, heightened scrutiny of its free exercise claim is not appropriate. “[A] plaintiff does not allege a hybrid rights claim entitled to strict scrutiny analysis merely by combining a free exercise claim with an utterly meritless claim of the violation of another alleged fundamental right.” Civil Liberties for Urban Believers, 342 F.3d at 765 (quoting Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 1999)); see also Parker v. Hurley, 514 F.3d 87, 98 (1st Cir. 2008) (“No published circuit court opinion . . . has ever applied strict scrutiny to a case in which plaintiffs argued they had presented a hybrid claim.”). And, as described below, none of Plaintiffs’ other constitutional claims under the First Amendment or Equal Protection Clause has merit.

Unable to fit their case into either of Smith’s two exceptions, Plaintiffs insist that the Supreme Court’s recent opinion in Hosanna-Tabor limits Smith’s holding to laws that govern “outward physical acts,” as opposed to laws that interfere with a religious institution’s right to control its own “faith and mission” through appointments of its ministers and religious teachers. (Pl. Br. 28; see also Hosanna-Tabor, 132 S. Ct. at 706-

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07.) But while “[t]he Free Exercise Clause absolutely protects the freedom to believe and profess whatever religious doctrine one desires,” it provides much less protection “for the ability to practice (through the performance or non-performance of certain actions) one’s religion.” Indianapolis Baptist Temple, 224 F.3d at 629 (emphasis added).

Grounding its opinion on this distinction, Hosanna-Tabor adopted lower court holdings that employment discrimination laws, like Title VII, are subject to a “ministerial exception” under which the law cannot require a church to hire or retain a specific minister.

132 S. Ct. at 705-07. Basing its decision on the Free Exercise and Establishment Clauses, the Court held: Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.

By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

Id. at 706 (emphasis added). Distinguishing Smith, which upheld the application to a Native American religious adherent of laws against the use of peyote, the Court stated: The present case . . . concerns government interference with an internal church decision that affects the faith and mission of the church itself. See [Smith, 494 U.S.] at 877 (distinguishing the government’s regulation of “physical acts” from its “lend [ing] its power to one or the other side in controversies over religious authority or dogma”).

Id. at 707 (emphasis added).

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Plaintiffs read too much into Hosanna-Tabor’s holding. As this court explained in Korte v. Sebelius, 735 F.3d 654, 677 (7th Cir. 2013), Hosanna-Tabor is a “paradigmatic case[]” for the Free Exercise Clause’s protection for “the autonomy of the church,” which reflects the “boundary between two separate polities, the secular and the religious, and acknowledg[es] the prerogatives of each in its own sphere.” But Illinois’ laws do not require religious schools to teach anything contrary to their religious beliefs or require them to hire or fire anyone. These laws merely prevent Plaintiffs from taking the entirely different step of issuing college degrees so that their students can represent to the wider world that they have earned a bachelor’s, master’s or doctorate degree.

Unlike teaching or selecting faculty, sending graduates into the world with college and university “degrees,” which many of them will use to seek employment, cannot plausibly be characterized as a matter of “internal autonomy.”

It is true that, under Illinois law, Plaintiffs cannot both teach whatever they want with any faculty members they choose and issue college degrees to their graduating students. But that indirect and incidental effect of Illinois law on Plaintiffs’ operations, unlike employment discrimination laws that would directly force them to hire or retain specific religious instructors, does not offend the Free Exercise Clause as interpreted in Smith. See Rollins v. Dignity Health, 830 F.3d 900, 912 (9th Cir. 2016) (rejecting claim that statute limiting ERISA exemption to pension plans established by “churches” violated Free Exercise Clause by “interfer[ing] with internal matters of church governance” because, “even assuming that a church’s choice of organizational form is an ‘internal church decision that affects the faith and mission of the church,’ the church-

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plan exemption does not interfere with this choice”) (quoting Hosanna-Tabor, 132 S. Ct. at 707); Clarksville Sch. of Theology, 636 S.W.2d at 709, 711 (holding that issuance of post-secondary degrees is secular activity, not religious one); see also Vision Church, 468 F.3d at 998 (“As we noted in CLUB, [342 F.3d at 763,] ‘no Free Exercise Clause violation results where a burden on religious exercise is the incidental effect of a neutral, generally applicable, and otherwise valid regulation, in which case such regulation need not be justified by a compelling governmental interest.’”) (emphasis added). c.

Illinois’ laws concerning degree-granting institutions properly advance a compelling public interest.

Even if strict scrutiny applied to Illinois’ laws, the district court’s dismissal of Plaintiffs’ free exercise claim should be affirmed.

Virtually every case that has

considered the issue has rejected the claim that the Free Exercise Clause supports an exemption from laws designed to ensure the quality of education, including laws relating to teacher qualifications and the adequacy of course materials.

In the analogous context of primary and secondary education, cases holding that religious opposition to government control of education does not justify an exemption from laws requiring teacher certification or specifying standards for course curricula are too numerous to count. See, e.g., New Life Baptist Church Acad., 885 F.2d at 945-52 (Breyer, J.) (surveying cases upholding laws mandating compulsory attendance, teacher certification and state approval of religious schools and their curricula, and upholding law authorizing public officials to approve religious school based on information about its texts and curricula for each grade, examination of faculty members’ academic qualifications, and school visit to observe teaching methods, materials, and curricula); 30

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Fellowship Baptist Church v. Benton, 815 F.2d 485 (8th Cir. 1987); Valley Christian Sch. v. Montana High Sch. Ass’n, 86 P.3d 554, 557 (Mont. 2004); State v. Faith Baptist Church, 301 N.W.2d 571, 575-80 (Neb. 1981); State v. Shaver, 294 N.W.2d 883, 888-900 (N.D. 1980); Sheridan Rd. Baptist Church v. Dep’t of Educ., 348 N.W.2d 263, 269-74, (Mich. App. 1984), aff’d, 396 N.W.2d 373 (Mich. 1986); see also Annotation: Validity of state regulation of curriculum and instruction in private and parochial schools, 18 A.L.R.4th 649 (1982 & Supp.).

The government interests relating to public oversight of post-secondary degreegranting institutions are not identical, but the analysis is similar, as are the results. See Shelton College II, 448 A.2d at 993-97 (holding that although compliance with state law licensing degree-granting institutions may impose “some indirect burden” on religious college, no free exercise violation existed because “the uniform application of these licensing requirements is essential to the achievement of the State’s interests”); Clarksville Sch. of Theology, 636 S.W.2d at 709-11 (citing Shelton College I and finding no free exercise violation in application of state’s regulation of degree-granting authority that left school free to continue religious activity of training ministry and “places neither a direct nor indirect burden upon the free exercise of religion by the defendants nor threatens an entanglement between the affairs of church and state”); see also N.J.Philadelphia Presbytery, 654 F.2d at 887 (affirming denial of preliminary injunction concerning religious college’s free exercise claim to confer degrees without state approval in light of state’s “significant interest in protecting both the consumers of education and the public which may rely upon the certification of proficiency implicit in the award of

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a degree”); Institute for Creation Research, 2010 WL 2522529 at *1, 6-13 (rejecting free exercise challenge to state licensing body’s refusal to approve program for “Master of Science degree with a major in Science Education from ‘a Biblical scientific creationist viewpoint’” based on finding that it “reject[ed] one of the foundational theories of modern science,” “did not adequately prepare students in the field of science education, and could not properly be designated as such a degree”).

Plaintiffs rely heavily on the plurality opinion of the Texas Supreme Court in HEB Ministries, Inc. v. Texas Higher Education Coordinating Board, 235 S.W.3d 627 (2007). (Pl. Br. 19-21.) That opinion did not dispute the importance of the governmental interests relating to the issuance of post-secondary degrees, but it held that the Texas law challenged in that case, to the extent the law further limited the right to issue diplomas and certificates, did not advance those interests in a narrowly tailored way because the State’s licensing board could instead pursue the alternative of evaluating — apparently on a case-by-case, after-the-fact basis — whether “an award of a diploma in religious studies did not represent the expected academic achievement,” and because the “restrictions on all terminology relating to degrees . . . for religious programs” were too “pervasive.” 235 S.W.3d at 660. As the dissent explained, id. at 666-68, 683-86, HEB Ministries was wrongly decided.

In addition, strict scrutiny, including narrow tailoring, is required under the Free Exercise Clause only when a law substantially burdens a religious activity. Vision Church, 468 F.3d at 996. But issuing college degrees, as opposed to teaching, is a secular activity, and being denied the right to do so is not a substantial burden on religion.

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And even if narrow tailoring were required, the Establishment Clause does not require government to implement a valid policy through a system of ad hoc decisionmaking, which can lead to even greater constitutional problems. See New Life Baptist Church Academy, 885 F.2d at 947-49. The additional suggestion in HEB Ministries that, as long as a post-secondary institution does “not use the word ‘degree,’” the strong public interest in safeguarding the integrity of traditional degrees is not undermined by letting it issue graduation papers with closely similar names — e.g., “Bachelor Level Diploma,” “Master of Arts,” or “Doctor of Philosophy,” 235 S.W.3d at 639 — is untenable, especially when the desire to confer degrees is economic, not religious.

3.

Illinois laws regarding degree-granting institutions do not violate the Establishment Clause as applied to Plaintiffs.

The district court correctly held that Illinois’ challenged statutes and regulations do not violate the constitutional prohibition against laws “respecting an establishment of religion.” These laws have neither the purpose nor the principal effect of favoring or disfavoring any specific religion, or religion generally. And Plaintiffs, who refuse to apply for Board approval to operate as degree-granting institutions, alleged no facts to support a reasonable inference that the Board’s approval process, as applied to them, would amount to an excessive government entanglement with religion.

A government policy or practice is consistent with the Establishment Clause if it meets three requirements (often referred to as the “Lemon test”): (1) it has a secular purpose; (2) its primary effect neither advances or inhibits religion, and (3) it does not foster an excessive government entanglement with religion. Lemon, 403 U.S. at 612-13; Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 849 (7th Cir. 2012) (en banc). As Doe 33

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explained, “the touchstone for Establishment Clause challenges remains ‘the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion.’” 687 F.3d at 850 (quoting McCreary County Kentucky v. ACLU of Kentucky, 545 U.S. 844, 860 (2005)); see also Larson v.

Valente, 456 U.S. 228, 244 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”); Milwaukee Deputy Sheriffs’ Ass’n v. Clarke, 588 F.3d 523, 527 (7th Cir. 2009) (noting that the Establishment Clause “prohibits the government from promoting ‘a point of view in religious matters’ or otherwise taking sides between ‘religion and religion or religion and nonreligion’”) (quoting McCreary Cnty., 545 U.S. at 860). The laws challenged by Plaintiffs readily satisfy these standards. a.

Legislative Purpose

Illinois’ laws requiring Board approval before an entity can grant college “degrees” unquestionably serve a secular purpose, which is spelled out in the 1961 Act: to prevent deception of the public, including employers, and to insure that when someone claims to have a “degree,” that person has actually completed a legitimate course of study at an institution of higher education. Plaintiffs complain that, as a result of their refusal to submit to the approval process, these laws diminish their students’ marketability and consequently burden Plaintiffs’ ability to attract students and compete with other schools. But they have pointed to nothing on the face of the challenged statutes, in the history of their enactment, or in the scope of their application (which covers secular and religious institutions alike) to suggest that the true object of

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these laws is to favor or disfavor any religion, religious belief or practice. b.

Primary Effect

It is equally clear that the primary effect of the challenged laws is neither to promote nor to disadvantage religion. For this element of the Lemon test, the central issue is “whether, irrespective of the government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.” Brooks v. City of Elkhart, 235 F.3d 292, 302 (7th Cir. 2000) (citation and internal quotation marks omitted); see also Doe, 687 F.3d at 843-44, 849-54. The primary effect of Illinois’ laws is to protect the public against post-secondary degrees granted by private schools, whether secular or sectarian, that are based on fraudulent or susbtandard academic practices, not to endorse or disapprove any religious views. That the laws, based on the application of secular criteria, may indirectly have an adverse effect on some religious schools does not mandate a contrary conclusion. See, e.g., Shelton College II, 448 A.2d at 993-97; Clarksville Sch. of Theology, 636 S.W.2d at 710-11.

Disputing this, Plaintiffs again rely heavily on the plurality opinion in HEB Ministries and claim that, by “limiting the use of ‘degree’ terminology,” Illinois law “impermissibly endorses some religious education and schools over others” and “‘takes sides in the religious debate over how religion should be taught . . . .’” (Pl. Br. 20 4

The statutory accommodation allowing issuance of “diplomas” and “certificates” for non-degree programs “devoted entirely to the teaching of religion or theology” (105 ILCS 426/15, 30; 23 Ill. Admin. Code §§ 1095.20(b)(1), 1095.30) reinforces this conclusion, rather than detracting from it. See, e.g., Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 608 (4th Cir. 2012) (discussing legitimate role for government accommodation of religion).

The district court erred, however, when it said Plaintiffs may issue “degrees” (as that term is defined in Illinois’ statutes and regulations) for programs that include secular subjects, as long as Plaintiffs call them “diplomas” or “certificates.” (Doc. 38 at 7.)

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(emphasis added) (quoting HEB Ministries, 235 S.W.3d at 646) (plurality opinion of Hecht, J.).) Plaintiffs are mistaken. The plurality opinion conceded that “the principal or primary effect” of the challenged law was not “to advance or inhibit religion.” Id. at 647 (emphasis in original); see also id. at 663 (Jefferson, J., concurring).

In any event, Plaintiffs confuse the primary effect of licensing degree-granting institutions based on secular criteria with the ancillary consequence of a licensing body’s refusal to approve some religious schools that do not satisfy those criteria. See Stapleton v. Advocate Health Care Network, 817 F.3d 517, 532 (7th Cir. 2016) (“The establishment clause does not require the government to equalize the burdens (or the benefits) that laws of general applicability impose on religious institutions.”) (citation and internal quotation marks omitted). Without that distinction, belief in a particular religious doctrine would “‘permit every citizen to become a law unto himself.’” Smith, 494 U.S. at 879 (quoting Reynolds v. United States, 98 U.S. 145, 167 (1878)). In addition, the effect Plaintiffs complain about is even more attenuated here because Illinois’ laws do not restrict their ability to teach, but just to issue post-secondary degrees — which they do not claim is a religious practice, but only one that they, their students, and their students’ prospective employers desire for economic reasons.

In Bowen v. Kendrick, 487 U.S. 589 (1988), the Supreme Court rejected a facial Establishment Clause challenge to a statutory program authorizing grants for research and counseling about teen sexuality and pregnancy that allowed participation by religious organizations. Addressing the Lemon test’s second prong, the Court emphasized that “a fairly wide spectrum of organizations [was] eligible to apply for and receive

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funding under the Act,” and that the Act was “neutral with respect to the grantee’s status as a sectarian or purely secular institution.” Id. at 608. Noting that the Act also required applicants to disclose what services they intended to provide, enabling the government “to ensure that federal funds are not used for impermissible purposes,” id. at 615, the Court rejected the contention that the program was unconstitutional simply because “the Government’s secular concerns would either coincide or conflict with those of religious institutions,” id. at 612-13. In this case, the Board’s approval authority applies both to secular and religious institutions and requires decisions to be made based on secular criteria. That these criteria may “coincide or conflict with” those espoused by some religious post-secondary schools does not make their primary effect one of endorsing or disapproving religion.

Likewise in Fleischfresser v. Directors of School District 200, 15 F.3d 680 (7th Cir. 1994), this Court rejected a claim that a school district’s supplemental reading program violated the Establishment Clause because it included religious themes and references.

The Court explained: [T]he primary or principal effect of the use of the reading series at issue is not to endorse these religions, but simply to educate the children by improving their reading skills and to develop imagination and creativity. Any religious references are secondary, if not trivial.

Id. at 689. A similar conclusion applies here.

Plaintiffs have not alleged that religious schools exclusively, or primarily, have been denied Board approval, much less that any such denials constitute an “endorsement” of particular religious beliefs, as opposed to the application of secular academic 37

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standards. See Mueller v. Allen, 463 U.S. 388, 397 (1983) (upholding state statute granting tax deduction for educational expenses “incurred by all parents” because it did not “confer any imprimatur of State approval” on religion) (emphasis in original, citation and internal quotation marks omitted). Plaintiffs simply allege that because they refuse for religious reasons to submit to the Board’s regulatory authority, they cannot obtain such approval, and therefore cannot grant their students college “degrees.” That indirect effect of the laws, which does not even prevent Plaintiffs from teaching any religious views they hold, does not offend Lemon’s “primary effect” prong. See Carter v. Peters, 26 F.3d 697, 699 (7th Cir. 1994) (upholding law making commission of crime around place of worship at or near time of worship services an aggravating sentencing factor, and stating that “incidental, indirect benefits to religion do not offend the second prong of the Lemon test”) (emphasis added). c.

Excessive Entanglement

Plaintiffs’ contention that Illinois’ statutes and regulations, as applied to them, will entail an “excessive government entanglement” with religion is unconvincing. “[T]o constitute excessive entanglement, the government action must involve ‘intrusive government participation in, supervision of, or inquiry into religious affairs.’” Vision Church, 468 F.3d at 995 (quoting Indianapolis Baptist Temple, 224 F.3d at 631).

Excessive entanglement arises from “comprehensive, discriminating, and continuing state surveillance.” Lemon, 403 U.S. at 619. The Supreme Court has recognized that “interaction between church and state is inevitable,” and it therefore has “always tolerated some level of involvement between the two.” Agostini v. Felton, 521 U.S. 203,

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233 (1997) (internal citation omitted). And this Court has explained that “blanket regulations, which apply equally to religious and nonreligious groups alike, are simply not the type of government involvement that raises entanglement prong concerns.”

Sherman v. Consol. Sch. Dist. 21, 8 F.3d 1160, 1165 n.10 (7th Cir. 1993).

In numerous cases the Supreme Court has found that the Establishment Clause permits government review of religious institutions that receive financial grants or other benefits, provided that it is not intrusive and continuing. For example, in Agostini, the Court held that monthly visits to parochial schools by public officials to ensure that remedial education provided by public school teachers remained secular did not result in excessive entanglement. 521 U.S. at 232-35; see also Bowen, 487 U.S. at 615-17 (upholding government support for adolescent counseling program run by religious institutions where government reviewed materials used and made periodic visits to monitor implementation); Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 764-65 (1976) (finding no excessive entanglement where State conducted annual audits to ensure that categorical state grants to religious colleges were not used to teach religion); Mueller, 463 U.S. at 403 (holding that state officials’ examination of textbooks to determine whether they were “books and materials used in the teaching of religious tenets, doctrines, or worship” was not excessive entanglement).

With respect to the excessive entanglement prong of the Lemon test, Plaintiffs’ as-applied challenge to Illinois’ laws regulating degree-granting institutions fails at the outset because they have refused to submit to the Board’s approval process, and they consequently base this claim entirely on the abstract proposition that the use of any

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“substantive standards” in the evaluation of their faculty or curriculum is excessive.

(Pl. Br. 14-16, 20-28.) The law does not support this far-reaching assertion.

In Shelton College II, the New Jersey Supreme Court briskly dispensed with a similar contention: “Because Shelton College declined even to complete the licensing process, the allegation of excessive entanglement rests on speculation about the manner in which these statutes and regulations might be applied.” 448 A.2d at 998 (emphasis added). The court added that, “[a]lthough one could imagine an unconstitutional application of this regulatory scheme, . . . [a]t this juncture . . . we need not invalidate these statutes merely because they may be amenable to an unconstitutional application.” Id. Likewise, in New Life Baptist Church Academy, the First Circuit refused to declare unconstitutional a program requiring government approval of a religious school based on limited school visits and an examination of the school’s course materials and teachers’s credentials. The court explained that although “the standards the School Committee applies in deciding whether to approve or to disapprove the secular education program must be reasonable, . . . at this stage of the proceeding, before the School Committee has presented or applied its precise standards (other than the standards contained in the statute), we have no reason to think that the substantive content of those standards will prove constitutionally impermissible.” 885 F.2d at 945.

The same conclusion is warranted here. Plaintiffs insist, and the district court held, that their claims challenge Illinois’ laws “as applied” to them. (Doc. 19 at 13, Doc. 32 at 5-6, Doc. 38 at 4-5; Pl. Br. 17, 44.) But because Plaintiffs refused to participate in the Board’s process for evaluating schools that seek approval to operate as

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degree-granting institutions, there is no basis to conclude that this process involves “comprehensive, discriminating, and continuing state surveillance” of Plaintiffs’ activities, see Lemon, at 403 U.S. 619, or an “intrusive government participation in, supervision of, or inquiry into religious affairs,” see Indianapolis Baptist Temple, 224 F.3d at 631.

There is, in any event, no merit to Plaintiffs’ argument that any examination at all of their faculty members’ qualifications or the content of their curricula amounts to an unconstitutionally excessive government entanglement with religion. As noted above, the Supreme Court has rejected Establishment Clause challenges to school aid programs even where public officials had to examine educational materials to ensure they were limited to secular subjects. Other courts have reached similar results in cases involving government approval of private schools to satisfy compulsory attendance laws or to qualify as degree-granting institutions, holding that the Establishment Clause does not insulate religious schools from all government consideration of the content of their academic materials. In New Life Baptist Church Academy, the First Circuit held that the government program for approval of private schools did not lead to excessive entanglement even though the review committee examined the plaintiff’s written curriculum “for each grade and subject.”

885 F.2d at 942-43, 952-54.

See also

Fellowship Baptist Church, 815 F.2d at 494-95 (finding no excessive entanglement in curriculum review requirement for approval of religious school, and emphasizing that “nothing in the certification statute or regulations requires agreement or acceptance of the beliefs or values of others”); Shelton College II, 448 A.2d at 997-98 & n.7 (finding no

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excessive entanglement in laws requiring state review of religious school, including standards for admission and whether faculty work, educational program, and facilities support its stated educational purpose); Clarksville Sch. of Theology, 636 S.W.2d at 709 (holding that Tennessee law requiring state certification of religious degree-granting institutions did not create an “entanglement between the affairs of church and state” where “it merely sets forth minimum standards which must be met in order for an institution to be authorized to issue degrees,” which constitutes “a purely secular activity”); Sheridan Rd. Baptist Church, 348 N.W.2d at 274-75 (holding that teacher certification and curriculum requirements, involving review of religious schools’ courses, did not give rise to excessive entanglement); cf. Fleischfresser, 15 F.3d at 689 (rejecting claim that public school’s curriculum committee’s pre-purchase review of supplementary reading materials containing minor references to religious themes created excessive entanglement with religion).

Plaintiffs insist, however, that applying any standards to evaluate a religious education “is a religious exercise” for which the State lacks “competence.” (Pl. Br. 22-23 (quoting HEB Ministries, 235 S.W. 3d at 643).) But Plaintiffs’ entire curriculum cannot be placed off limits from any examination just because it concerns religion or is taught from a religious perspective. The touchstone of Establishment Clause jurisprudence is neutrality, and courts therefore have routinely held that, when the law affects religious practices or organizations, the application of neutral, secular criteria avoids a constitutional violation. See, e.g., Agostini, 521 U.S. at 231-32 (upholding aid program available to both religious and secular beneficiaries based on “neutral, secular criteria that neither

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favor nor disfavor religion,” and stating that inquiry into whether program fosters excessive entanglement with religion looks at “whether it was neutral and nonideological”); Moss, 683 F.3d at 599, 607-11 (rejecting Establishment Clause challenge to state statute authorizing release-time high school credit for classes in religious instruction that (1) required classes to be “evaluated on the basis of purely secular criteria” equivalent to criteria used to evaluate transfer credits from established private high schools; (2) required decision to award credits to be “neutral as to, and . . . not involve any test for, religious content or denominational affiliation”; and (3) defined “secular criteria” for evaluation to include “review of the course syllabus which reflects the course requirements and materials used” and “whether the course was taught by a 5

certified teacher”).

Under Illinois law, the Board applies strictly secular criteria and, in doing so, does not even police a boundary between secular and religious content. It does not require or forbid the teaching of any religious subject, nor does it approve or disapprove course materials or faculty credentials based on agreement or disagreement with any religious viewpoint. Thus, for example, if a religious school offered a course in religious history based on the view that all statements in the Bible are literally correct, the Board would apply secular criteria to evaluate whether the course materials adequately cover that subject, but would not “take sides on issues of religious doctrine.” See McCarthy v.

5

Other cases rejecting Establishment Clause claims against a law specifying neutral, secular criteria include Commack Self-Serv. Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 20709 (2d Cir. 2012) (state labeling law for kosher foods); Lanner v. Wimmer, 662 F.2d 1349, 1361 (10th Cir. 1981) (law allowing release-time school credit for off-campus religious courses); and American Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 567 F.3d 278, 290 (6th Cir. 2009) (grants for urban revitalization program).

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Fuller, 810 F.3d 456, 459 (7th Cir. 2015). Likewise, for so many of Providence’s courses that cover predominantly secular subjects (see above at 10 n.1), the Board may review the syllabus and any curriculum materials to evaluate whether they are adequate to present that subject without making normative judgments about the religious perspective Providence or its teachers bring to the course. Illinois law simply assures, through the application of neutral, secular criteria, that the content of what is taught is consistent with the school’s own description of it and is adequate to convey that subject matter. Cf. Nova Univ., 483 A.2d at 1183 (finding no free speech violation where licensing body’s “inquiry is limited to neutral, sound, academic criteria, not intended or likely to intrude upon the legitimate intellectual life of a university, but to ensure that when a university confers a degree, it does indeed have an intellectual life and the minimal resources essential to support that life”) (emphasis in original). That does not excessively entangle the State with religion.

Plaintiffs’ similar challenge to Illinois’ criteria for determining the adequacy of faculty credentials (Pl. Br. 30-31) also is implausible. Nothing in these neutral, secular criteria directs the Board to approve or disapprove the religious views of any professor.

Application of these criteria represents the opposite of excessive entanglement. d.

The Acts’ grandfather clauses

The grandfather clauses in the 1945 and 1961 Acts add nothing to Plaintiffs’ Establishment Clause claim. It is not constitutionally significant that these provisions exempt from the Board’s approval process some religious schools but not others, or exempt some secular schools but not some religious schools. That is the natural

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consequence of a cutoff date that applies to religious and nonreligious schools alike.

The grandfather clauses satisfy the Lemon test because there is no basis to conclude that their purpose or primary effect is to promote or disadvantage religion, or that administering them (which involves a straightforward inquiry into whether a degree-granting institution or specific degree program existed before the relevant date) requires an excessive entanglement with religion. All schools are subject to the same standards. All schools predating the 1945 or 1961 dates are treated the same, as are all schools founded after those dates. No reasonable observer, looking at the law governing the Board’s evaluation of post-secondary institutions, could dispute that it is neutral with respect to religious schools. See Liberty Univ., Inc. v. Lew, 733 F.3d 72, 102 (4th Cir. 2013) (upholding cutoff date for Affordable Care Act’s sharing-ministry exemption from individual mandate where neither its text nor its history “suggests any deliberate attempt to distinguish between particular religious groups,” it had the effect of promoting multiple secular goals, and it did not foster excessive entanglement with religion because it “applies only secular criteria”).

B.

The First Amendment’s Protections of Speech and Association Do Not Give Plaintiffs the Right to Issue College Degrees Free from Any Government Oversight.

The district court properly dismissed Plaintiffs’ free speech and right-ofassociation claims under the First Amendment, which states that “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble . . . .” U.S. Const. amend. I.

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The Free Speech Clause Does Not Nullify State Oversight of Degree-Granting Institutions of Higher Education.

Plaintiffs enjoy robust First Amendment protection for the content of their academic courses and the expression of their educational views, religious or otherwise.

That same protection does not extend, however, to their activity of conferring degrees on their graduates, which, if it constitutes speech at all, is professional or commercial speech entitled to significantly less protection than academic expression. Thus, courts have routinely rejected free speech claims based on schools’ purported First Amendment rights to issue degrees.

The professional speech doctrine recognizes that “[p]rofessional regulation is not invalid, nor is it subject to first amendment strict scrutiny, merely because it restricts some kinds of speech.” Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602, 604 (4th Cir. 1988) (citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456-57 (1978)). When government licenses the right to engage in a profession, such as practicing law or medicine, incidental restrictions on speech that result from that licensing function do not violate the First Amendment. Accountant’s Soc’y of Va., 860 F.2d at 604 (“A statute that governs the practice of an occupation is not unconstitutional as an abridgement of the right to free speech, so long as any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation.”) (citation and internal quotation marks omitted); Lawline v. Am. Bar Ass’n, 956 F.2d 1378, 1386 (7th Cir. 1992) (“Any abridgment of the right to free speech is merely the incidental effect of observing an otherwise legitimate regulation.”); see also Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring). The professional speech doctrine has been applied to many 46

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regulated professions, beyond just law, medicine, and accounting. The principles that justify it logically apply to the activity of granting college degrees, which in relevant respects is like a profession — selling services (education) to a specific population (students) under authority of a state license justified by the interest in protecting the public against “the untrustworthy, the incompetent, or the irresponsible.” Thomas, 323 U.S. at 545 (Jackson, J., concurring). Applying those principles to this case, Illinois’ regulation of Plaintiffs’ degree-conferring activities does not infringe their right to free speech because it is an incidental aspect of the State’s valid licensing scheme, which permits post-secondary schools to issue degrees based on criteria relating to their faculties, facilities, and curriculum.

Even if conferring degrees is not professional speech, Plaintiffs’ free speech claim founders under commercial speech principles. Commercial speech receives reduced First Amendment protection, Central Hudson Gas & Elec. Corp. v. Public Serv. Comm. of New York, 447 U.S. 557, 562-63 (1980), and “false or misleading commercial speech receives no protection at all,” United States v. Benson, 561 F.3d 718, 725 (7th Cir. 2009); see also Florida Bar v. Went For It, 515 U.S. 618, 623-24 (1995) (holding that government may “freely regulate commercial speech that is misleading”). And for laws regulating 6

See Young v. Ricketts, 825 F.3d 487, 492-93 (8th Cir. 2016) (rejecting claim by real estate broker that “requiring [her] to get a license is a content-based prior restraint on her First Amendment rights”); Moore-King v. Cty. of Chesterfield, Va., 708 F.3d 560, 569-70 (4th Cir. 2013) (fortune tellers and psychic counselors); Hines v. Alldredge, 783 F.3d 197, 202 (5th Cir.) (veterinary medicine), cert. denied, 136 S. Ct. 534 (2015); Locke v. Shore, 634 F.3d 1185, 1192 (11th Cir. 2011) (interior design); Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658, 667 (1st Cir. 2010) (psychology); Nat’l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1056 (9th Cir. 2000) (same); see also Lowe v. S.E.C., 472 U.S. 181, 230-33 (1985) (White, J., concurring) (investment advisors).

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commercial speech, the rights of listeners, not just speakers, receive particular weight.

Nat’l Comm’n on Egg Nutrition v. F.T.C., 570 F.2d 157, 162 (7th Cir. 1977).

If issuing a degree is speech at all, it is at best commercial speech. In Nova University, 483 A.2d at 1181, 1187, the court held that “degree conferral is business conduct,” and that “[t]he First Amendment cannot be used as a shield to protect substandard or fraudulent degree conferring educational institutions.” The Supreme Court has recognized that the use of commonly understood initials or a similar designation after one’s name indicating professional licensure or credentials is commercial speech. Ibanez v. Florida Dep’t of Bus. & Prof. Regulation, 512 U.S. 136, 142 (1994); see also HEB Ministries, 235 S.W.3d at 669, 687 (opinions of Jefferson, C.J., and Wainwright, J., concurring in part and dissenting in part). Under this precedent, and in light of States’ long-established authority to determine who may issue degrees, Illinois may prohibit the misleading activity of conferring college degrees without assurance that a college’s educational programs are of adequate quality. See Nova Univ., 483 A.2d at 1184 (rejecting free speech claim to issue post-secondary degrees without government approval in light of public interest “in preventing the harms that arise when educational institutions abuse their degree-conferring authority”); Shelton College I, 226 A.2d at 616-17 (finding no merit in unapproved school’s free speech challenge to licensing body’s resolution prohibiting it from issuing degrees because it “does not limit in any way what Shelton may teach,” but instead “concerns the power to confer the bachelor degree”); see also Ohio Ass’n of Independent Schools v. Goff, 92 F.3d 419, 424 (6th Cir. 1996) (rejecting free speech challenge to statute authorizing revocation of private school

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charters for failure to administer student proficiency tests and barring diplomas for students who do not achieve minimum test scores, stating that “[t]he testing requirement in no way restricts plaintiffs from teaching any particular subjects, nor does it limit the manner in which they may teach the material”); Institute for Creation Research, 2010 WL 2010 WL 2522529 at *1, 4, 8-13.

Plaintiffs nonetheless assert that Illinois’ restriction on the right to confer postsecondary degrees must be subjected to strict scrutiny following Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), which struck down a local law setting different size and duration limits for various classes of outdoor signs, including different limits for ideological signs, electioneering, and church services. The Supreme Court held, in particular, that strict scrutiny applies to laws that, on their face, regulate speech based on its content, not just those that reflect government disagreement with the speech. Id. at 2227-29. Critically, however, Reed never suggested that its holding silently swept aside the Court’s many precedents recognizing less First Amendment protection, or none at all, for specific types of speech, including commercial speech, fraud, or obscenity. And later decisions by lower courts have rejected the argument that Reed did any such thing. See BBL, Inc. v. City of Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015) (holding that Reed does not “upend[] established doctrine for evaluating regulation of businesses that offer sexually explicit entertainment,” which “the Court has said occupies the outer fringes of First Amendment protection”); Lone Star Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192, 1198 n.3 (9th Cir. 2016) (“although laws that restrict only commercial speech are content based, see Reed III, 135 S. Ct. at 2232, such restrictions need only withstand

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intermediate scrutiny”); Mass. Ass’n of Private Career Sch. v. Healey, 159 F. Supp. 3d 173, 192 (D. Mass. 2016) (surveying cases holding that Reed does not eliminate commercial speech jurisprudence). In any event, even if Illinois’ laws are viewed as facially regulating the content of speech represented by a college degree, they are valid because, as described above, they advance a compelling interest by narrowly tailored means.

2.

State Licensing of Degree-Granting Institutions Does Not Infringe Protected Rights of Expressive Association.

Plaintiffs’ First Amendment freedom-of-association claim was rightly dismissed.

Plaintiffs say they “do not want the State to interfere in their internal organization or affairs.” (Pl. Br. 38.) But Illinois’ challenged laws respect Plaintiffs’ autonomy and internal affairs by leaving them free to assemble and teach what they want. These laws just prevent Plaintiffs from taking the additional step — beyond their exercise of internal autonomy — of granting college degrees without Board approval. Any indirect effect that may have on Plaintiffs’ internal affairs is too attenuated to implicate, much less violate, Plaintiffs’ protected rights of association. See Nat’l Ass’n for the Advancement of Multijurisdiction Practice v. Castille, 799 F.3d 216, 223-24 (3d Cir. 2015); Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 441-47 (3d Cir. 2000). Plaintiffs offer no contrary authority, or any authority at all, and for that reason as well the dismissal of this claim should be affirmed. See Beverly v. Abbott Labs., 817 F.3d 328, 334 (7th Cir. 2016) (arguments that are undeveloped and unsupported by

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7

pertinent authority are forfeited).

IV.

The Grandfather Clauses in the 1945 and 1961 Acts Do Not Violate Plaintiffs’ Right to Equal Protection.

There is no merit to Plaintiffs’ equal protection claim, which asserts that the

grandfather clauses in the 1945 and 1961 Acts unconstitutionally discriminate against Bible colleges that oppose government oversight. These clauses easily satisfy the Equal Protection Clause given the long-recognized legitimacy of using grandfather provisions to protect reliance interests. See New Orleans v. Dukes, 427 U.S. 297, 305 (1976); Marusic Liquors, Inc. v. Daley, 55 F.3d 258, 261-62 (7th Cir. 1995); McCann v. City of Chicago, 968 F.2d 635, 638 (7th Cir. 1992); see also Shelton College I, 226 A.2d at 622-24 (upholding grandfather clause in statute requiring license to operate degree-granting institution). Plaintiffs do not dispute that both secular and religious colleges benefit from the Acts’ grandfather provisions (see Pl. Br. 22), and the current regulatory scheme likewise applies to both religious and secular schools. Any difference in impact on religious and secular schools, either before or after the cutoff dates, does not establish an equal protection violation. See Davis K. v. Lane, 839 F.2d 1265, 1271-72 (7th Cir. 1988).

8

7

Plaintiffs’ arguments specifically relating to the 2012 Act and to any unique rights held by Bible college students (Pl. Br. 42-43) are equally undeveloped without pertinent supporting authority and accordingly merit no substantive response.

8

Even treating religion as a suspect classification, the grandfather clauses are subject only to rational-basis review because they do not discriminate against religion on their face, and Plaintiffs do not allege they were motivated by discrimination against religion. See Davis K. v. Lane, 839 F.2d 1265, 1271-72 (7th Cir. 1988). Heightened equal protection scrutiny also applies to laws that burden a fundamental right, but not when that right is rooted in religion and, as in this case, the challenged law satisfies the Free Exercise Clause.

See St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir. 2007).

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CONCLUSION For the foregoing reasons, the district court’s judgment should be affirmed.

October 17, 2016

Respectfully submitted, LISA MADIGAN Attorney General State of Illinois

/s/ Richard S. Huszagh RICHARD S. HUSZAGH Assistant Attorney General 100 West Randolph Street 12th Floor Chicago, Illinois 60601 (312) 814-2587 rhuszagh@atg.state.il.us

DAVID L. FRANKLIN Solicitor General 100 West Randolph Street 12th Floor Chicago, Illinois 60601 (312) 814-3312 Attorneys for Defendant-Appellee

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Certificate of Compliance With Brief Requirements I hereby certify that: (1) This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.32(a)(6), as modified by Circuit Rule 32, in that the brief has been prepared in WordPerfect X4 using a proportionally spaced typeface using 12-point type (and 11.5-point type in the footnotes) in the Century Schoolbook family of fonts.

(2) This brief complies with the type volume limitations set forth in Fed. R. App. P. 32(a)(7)(B), in that the text of the brief, including headings, footnotes, and quotations, but excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), contains 13,927

words.

In preparing this certificate, I relied on the word count of the

WordPerfect X4 word processing system used to prepare this brief.

/s/ Richard S. Huszagh

Case: 16-1754

Document: 27

Filed: 10/19/2016

Pages: 66

Certificate of Filing and Service I hereby certify that on October 19, 2016, I electronically filed the foregoing Brief of Defendant-Appellee (corrected pursuant to the Clerk’s October 18, 2016 letter, and modified as described in defendant’s October 19, 2016 Motion to File Corrected Brief Instanter) with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system, which will effect service on the other participants in the case, all of whom are registered CM/ECF users.

/s/ Richard S. Huszagh