Illinois Bible Colleges Association v. Illinois Board of Higher Education Reply to Motion to Dismiss

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ILLINOIS BIBLE COLLEGES ASSOCIATION, et al., Plaintiffs, v.

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

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

No. 15 C 444 Judge Sharon Johnson Coleman

PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO DISMISS

John W. Mauck Noel W. Sterett Sorin Leahu Mauck & Baker, LLC One North LaSalle Street, Suite 600 Chicago, Illinois 60602 P: (312) 726-1243 F: (866) 619-8661

Erik Stanley Byron Babione Alliance Defending Freedom 15100 North 90th Street Scottsdale, Arizona 85260 P: (480) 444-0020 F: (480) 444-0028 *Appearing Pro Hac

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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................................. iii SUMMARY OF THE ARGUMENT....................................................................................... 1 MOTION TO DISMISS STANDARD .................................................................................... 4 ARGUMENT .......................................................................................................................... 5 I. Plaintiffs have sufficiently pled a claim under the Establishment Clause of the First Amendment to the United States Constitution .............................................................. 6 A. The State may not prefer one form of religious education over others ................... 6 B. The State may not establish standards for who should teach and what they must teach at post-secondary religious schools ................................................................. 8 II. Plaintiffs have sufficiently pled a claim under the Free Exercise Clause of the First Amendment to the United States Constitution............................................................. 11 III. Plaintiffs have sufficiently pled a claim under the Free Speech Clause of the First Amendment to the United States Constitution............................................................. 14 IV. Plaintiffs have sufficiently pled a Freedom of Association claim under the First Amendment to the United States Constitution............................................................. 22 V. Plaintiffs have sufficiently pled a claim under the Equal Protection Clause of the First Amendment to the United States Constitution. ................................................... 24 VI. Plaintiffs’ right to a broader exemption from the Private Business and Vocational School Act. ...................................................................................................................... 25

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TABLE OF AUTHORITIES CASES

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Ashcroft v. Iqbal, 556 U. S. 662 (2009)...................................................................................................... 4 Association of Christian Schools International v. Stearns, 679 F.Supp.2d 1083 (C.D. 2008) .................................................................... 20, 21, 22 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................................................... 4 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980)..................................................................................................... 19 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) .................................................................................................... 12 Cincinnati v. Discovery Network, Inc., 507 U. S. 410 (1993).................................................................................................... 17 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) .................................................................................................... 24 Craig v. Boren, 429 U.S. 190 (1976) ...................................................................................................... 6 Employment Division v. Smith, 494 U.S. 872 (1990) ........................................................................................ 11, 12, 13 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) .................................................................................................... 14 Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012)............................................................................................ passim HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627 (2007) ................................................................................... 1, 6, 7, 11

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Ibanez v. Florida Dept. of Bus. & Prof. Regulation, 512 U.S. 136 (1994) .................................................................................................... 18 Institute for Creation Research Graduate School v. Texas Higher Education Coordination Board, 2010 WL 2522259 (W.D. Tex. 2010) .................................................................... 21, 22 Johnson v. City of Shelby, 135 S. Ct. 346 (November 10, 2014) (per curiam) ...................................................... 4 Lemon v. Kurtzman, 403 U.S. 602 (1971) .............................................................................................. 1, 7, 8 Living Water Church of God v. Charter Township of Meridian, 384 F. Supp.2d 1123 (W.D. Mich. 2005).................................................................... 13 Locke v. Davey, 540 U.S. 712 (2004) .................................................................................................. 1, 2 Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) ................................................................................... 12 New Jersey State Board of Higher Education v. Shelton, 448 A.2d 470 (1982) ............................................................................................. 10, 11 Nova University v. Educational Institution Licensure Commission, 483 A.2d 1172 (D.C 1984) .......................................................................................... 19 R. A. V. v. St. Paul, 505 U. S. 377 (1992) ............................................................................................. 15, 16 Reed v. Gilbert, 2015 U.S. LEXIS 4061 (June 18, 2015) .......................................................... 15, 16, 17 Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105 (1991) .................................................................................................... 16 Singleton v. Wulff, 428 U.S. 106 (1976) ...................................................................................................... 6

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State of Tennessee ex rel. McLemore v. Clarksville School of Theology, 636 S.W.2d 706 (1982) ............................................................................................... 11 Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008). .................................................................................... 5 Truax v. Raich, 239 U.S. 33 (1915) ................................................................................................ 24, 25 Watson v. Jones, 80 U.S. 679 (1872) ............................................................................................ 1, 22, 23 Westchester Day Sch. v. Village of Mamaroneck, 417 F. Supp.2d 477 (S.D.N.Y. 2006) .......................................................................... 13

STATUTES, RULES, ORDINANCES, AND OTHER AUTHORITIES

PAGES

110 ILCS 1005/0.01 et seq (Private College Act)............................................................ passim 110 ILCS 1010/0.01 et seq (Academic Degree Act)........................................................ passim 105 ILCS 426/1 et seq (Private Business and Vocational Schools Act of 2012) ............ passim Illinois Administrative Code, 23 Ill. Adm. Code ยง 1030 et seq ................................... passim Fed. R. Civ. P. 8(a)(2) .............................................................................................................. 4 Religion Clauses, U.S. CONST. amend. I, cls. 1 & 2 .......................................................... 1, 9 U.S. CONST. amend. XIV, ยง 1, ............................................................................................... 24

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SECONDARY SOURCES

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Thomas E. Woods, Jr. “The Catholic Church and the Creation of the University.”

LewRockwell.com (May 16, 2005). ........................................................................................ 2 Marcia L. Colish, Medieval Foundations of the Western Intellectual Tradition, 400-1400, (New Haven: Yale Univ. Pr., 1997), p. 267. . ....................................................................... 23 Michael W. McConnell, Reflections on Hosanna-Tabor, 35 Harv. J.L. & Pub. Pol'y 822 (2012). . .................................................................................................................................. 11

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Plaintiffs, by their attorneys, respond to Defendant’s motion to dismiss as follows: SUMMARY OF THE ARGUMENT The State has neither the constitutional authority nor the competency to determine the standards for post-secondary religious education. See HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627, 643 (2007) citing Lemon v. Kurtzman, 403 U.S. 602, 625 (1971) (“[G]overnment is to be entirely excluded from religious instruction”); see also Watson v. Jones, 80 U.S. 679, 728-729 (1872) (“[t]he law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine… is unquestioned.”) The Supreme Court has held that the Religion Clauses, U.S. CONST. amend. I, cls. 1 & 2, protect the rights of post-secondary religious schools to operate in accordance with their own faith, mission, and standards. Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694, 706 (2012) (the Free Exercise Clause “protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”)

Bishops, Bible professors, and the faith groups within which they work, are to be free to provide, shape, and direct religious education in accordance with their sincerely held religious beliefs and callings. Locke v. Davey, 540 U.S. 712, 721 (2004) (“training for

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religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor”). That freedom must necessarily include the right to decide appropriate descriptions of the program of study, e.g. “Masters Program in Reformed Theology,” or of the graduate, e.g. “Doctor of Divinity.” Contrary to the inherent reasoning of the Defendant’s motion to dismiss, the Constitution never gave Illinois, or any state, the right to take away from churches and religious colleges their pre-constitutional freedom to award degrees. In fact, the first colleges and “degree” granting institutions in history began as “cathedral schools,” and the Catholic Church had a “central if not exclusive role in the establishment and encouragement of the university.” Thomas E. Woods, Jr. “The Catholic Church and the Creation of the University.” LewRockwell.com (May 16, 2005).

Further, the Supreme Court has recognized that majoring in a religious subject like “devotional theology is akin to a religious calling as well as an academic pursuit.” Id. Therefore, students who are called to and complete a program of study at an Illinois Bible college should not be denied the opportunities and recognitions they have earned on account of the State’s view of the “legitimacy,” vel non, of their religious education.

Nevertheless, by force of the Private College Act, 110 ILCS 1005/0.01 et seq., the Academic Degree Act, 110 ILCS 1010/0.01 et seq., the Private Business and Vocational Schools Act of 2012, 105 ILCS 426/1 et seq., and the Illinois Administrative Code, 23 Ill. Adm. Code § 1030, the State has claimed the power to decide not only whether a

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religious school’s education is “legitimate” or “substandard” but also the power to deny new 1 religious schools the ability to operate altogether as “degree granting institution[s].” These acts purport, not withstanding constitutional restraints on government power, to vest the Illinois Board of Higher Education with the power to inspect and set standards for, inter alia, a religious institution’s curriculum and faculty credentials. The State will not issue a “certificate of approval” to allow a new Bible college to operate unless the State is satisfied that “each course of instruction to be offered or given is adequate, suitable, and proper” and “the members of the teaching staff are adequately prepared to fulfill their instructional obligations.” 110 ILCS 1005/4.

Under the acts as written, and according to the facts as pled, if private, postsecondary, religious educational institutions, like the Plaintiffs in this case, do not submit to or meet the State’s standards for approval, they are prohibited from giving their students: “any designation, appellation, series of letters or words, or other symbol which signifies or purports to signify that [the student] thereof has satisfactorily completed an organized academic program of study beyond the secondary school level.” 110 ILCS 1005/1.

As outlined in greater detail at ¶¶ 17-25 of the First Amended Complaint, the acts in question expressly exempt from regulation and oversight all older Illinois schools, both religious and secular. The Illinois Board of Higher Education website specifically states (and for purposes of this litigation, thus concedes) that, “[i]n general, Illinois institutions established prior to 1961 are ‘grandfathered’ and are not required to seek authorization from the Board to operate or establish new degree programs on their main campuses.” Likewise, the Academic Degree Act provides that schools, both religious and secular, which were in operation on or before August 14, 1961 may award any earned degree.

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It is therefore “illegal” for a school like Dayspring Bible College, a ministry of Quentin Road Bible Church, to provide a would-be pastor, theologian, or missionary with anything signifying their satisfactory completion of a post-secondary program in Biblical Studies, Biblical Education, or Biblical Ministry.

The State’s regulatory scheme impermissibly chills and inhibits both the provision and pursuit of religious education, the schools’ freedom of speech, and the freedom of all the individuals involved (students, teachers, deans, bishops, etc.) to engage in association for the advancement and expression of the beliefs, doctrine, and missions of their faith. As such, and for the reasons below, the State’s motion must be denied.

MOTION TO DISMISS STANDARD The State’s motion to dismiss is brought under both Rules 12(b)(1) and 12(b)(6).

Because Plaintiffs will voluntarily dismiss, without prejudice, their state claims (based on the Illinois Constitution and the Illinois Religious Freedom Restoration Act) in light of the State’s claim to Eleventh Amendment immunity, all that is left for the Court to decide is whether the Plaintiffs have pled sufficient facts to show that their claims have “substantive plausibility.” Johnson v. City of Shelby, 135 S. Ct. 346, 347 (November 10, 2014) (per curiam) citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U. S. 662 (2009). Federal Rule 8(a)(2) simply calls for “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Court must construe the complaint in the light most favorable to the Plaintiffs, “accepting as

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true all well-pleaded facts alleged, and drawing all possible inferences in [their] favor.”

Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

ARGUMENT Plaintiffs will address the sufficiency of their claims 2 as pled in the order in which the State’s memorandum3 challenges them. Importantly, the State’s memorandum only challenges Plaintiffs’ federal claims as if they were “facial challenge[s] to the education statutes.” Dkt. 25 at pages 9 & 19 (“We again note plaintiffs are making a facial challenge.”). Plaintiffs’ First Amended Complaint, however, makes clear that the federal religious claims are not “facial,” as they “do not challenge the State’s authority to regulate secular institutions,” but are rather “as-applied,” since Plaintiffs “only contend that the State does not have the authority to set educational standards for religious postsecondary institutions which seek to educate and disciple students in programs that equip the students to integrate their religion or faith into their life, career, or work.”

Dkt. 19 at ¶ 2; see also Dkt. 19 at Prayer for Relief ¶¶ B & D. Since the State fails to challenge or even analyze Plaintiffs’ as-applied, federal claims, the Court may stop here, deny the State’s motion, and order the State to file its answer.

Further, despite the diversity of plaintiffs, Dkt. 19 at ¶¶ 5-11, the State does not address or challenge the students’ claims at all—neither those of student Leigh Pietsch Rather than contest the State’s claim to Eleventh Amendment immunity, Plaintiffs request an order allowing Plaintiffs to voluntarily dismiss their state claims without prejudice to their ability to re-file the state claims in an Illinois state court.

3 State’s memorandum of law (pages 2-4) concisely summarizes the three acts in question, so Plaintiffs will not provide a redundant summary herein.

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Esq., nor those of the students who seek or may seek religious education in Illinois, as asserted by the Illinois Bible Colleges Association. Dkt. 19 at ¶ 12. The State has also not challenged the Illinois Bible Colleges Association’s ability to assert the students’ rights.

See generally, Singleton v. Wulff, 428 U.S. 106, 113-118 (1976); see also Craig v. Boren, 429 U.S. 190, 194 (1976). Therefore, the State should be ordered to answer the students’ claims as well.

Nevertheless, should the Court wish to determine whether Plaintiffs’ unchallenged, as-applied, federal claims were sufficiently pled, Plaintiffs argue as follows: I. Plaintiffs have sufficiently pled a claim under the Establishment Clause of the First Amendment to the United States Constitution.

The State’s memorandum of law improperly treats Plaintiffs’ Establishment Clause claim as a facial challenge and as a result only argues in support of the State’s authority to regulate post-secondary education generally. The State not only ignores the specifics of Plaintiffs’ claim but also entirely ignores the authority of the Supreme Court’s holding in the Hosanna-Tabor school case. Plaintiffs’ specific claims are as follows: A. The State may not prefer one form of religious education over others.

Not all religious schools are the same. As noted by the Texas Supreme Court in HEB: For some, the secular education model is preferred, with programs structured like those of any liberal arts school, and accreditation, though expensive, is affordable.

For others, religious instruction is more insular, steeped in the doctrine and experience of a specific faith, and limited resources practically preclude obtaining accreditation. 235 S.W.3d at 645.

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As set more fully at ¶ 47 of the First Amended Complaint (Dkt. 19), the Illinois Bible Colleges herein oppose obtaining State approval in order to operate and grant degrees for a number of reasons, including inter alia, because they believe 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 IBHE the Church’s responsibility to God in deciding how to properly educate students in religious teaching and in deciding who should do the teaching; obtaining State approval and answering to the State will inevitably water down the doctrine of the College and the Church; and they do not wish to ascribe to the dictates of secular educational regulations. And some schools simply cannot afford State “approval” and do not wish to pass on the costs of State “approval” to students struggling to improve their lives.

Like Texas in the HEB case, Illinois has in place a regulatory scheme which impermissibly endorses some religious education and schools over others. By limiting the use of “degree” terminology and the ability to operate as a “degree granting institution” to only those religious schools which meet State standards, the State, in the words of the Texas Supreme Court, “takes sides in the religious debate over how religion should be taught by setting substantive standards for religious educational curriculum and process.” Id. at 646. This State action “advance[s] religious education the State approves and inhibit[s] what it does not;” thus, “clearly and excessively entangl[ing] the government in religious instruction.” Id.; Lemon, 403 U.S. at 625

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(“[G]overnment is to be entirely excluded from religious instruction”). And since all older religious schools are exempt from all the State’s regulation and oversight, the regulatory scheme favors older religious schools and disfavors new religious schools.

Concomitantly, the older “established” schools and seminaries – largely Methodist, Catholic, Presbyterian, Lutheran, Jewish – are not required to get state approval but the newer, minority or faster growing groups, think Hispanic Pentecostal, African American (i.e. United Faith Christian Institute and Bible College), or Muslim, must surmount the sometimes significant obstacles of state approval.

B. The State may not establish standards for who should teach and what they must teach at post-secondary religious schools.

In Hosanna-Tabor, the Supreme Court held that “the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission” is absolute and paramount under the First Amendment. (emphasis added) 132 S. Ct. at 710. It is the prerogative of religious schools to determine “who will personify its beliefs” as leaders and teachers. Id. at 706-707.

Here, the State’s regulatory scheme clearly and impermissibly establishes standards for post-secondary religious education to which the Plaintiffs must adhere if they wish to recognize student attainment. In order to obtain a “certificate of approval” from the State, Illinois Bible Colleges must submit to the State’s examination of their faculty and teaching staff. 110 ILCS 1005/4. See also 23 Ill. Adm. Code § 1030.30(a)(4). To satisfy the State, religious schools must hire faculty that meet the State’s standards, and in some 8

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cases, will have to fire faculty members who do not. If the State is not satisfied “that the members of the teaching staff are adequately prepared to fulfill their instructional obligations,” the State can prohibit them from operating as degree granting institutions.

The Illinois Administrative Code (“IAC”), 23 Ill. Adm. Code § 1030(a)(4)(A) et seq., specifically requires that: [a]t a minimum, faculty shall have a degree from an institution accredited by a U.S. Department of Education recognized accrediting body or a degree from another country evaluated for U.S. equivalency in the discipline they will teach or for which they will develop curricula at least one level above that of the courses being taught or developed. and [f]aculty teaching in a graduate program shall have a doctorate or terminal degree in the field of instruction. 23 Ill. Adm. Code § 1030.30(a)(4)(A)(iv).

The Code also provides that the State may make “[e]xceptions… for professional experience, equivalent training and other qualifications; however, these should be the exceptions and not the rule in meeting faculty qualification requirements. These exceptions for faculty may be recommended by the Board staff. 23 Ill. Adm. Code § 1030.30(a)(4)(A)(v).

When religious schools, like the Hosanna Tabor Church School and Illinois Bible Colleges, are no longer free to choose who will teach their faith but must hire and fire in order to satisfy state standards, the State is excessively entangled and the Establishment Clause is violated. In fact, both Religion Clauses are violated because the decision as to who will lead and teach at a religious school is inherently, entirely, and exclusively an ecclesiastical or religious matter. Hosanna-Tabor, 132 S. Ct. at 706.

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In addition, the IAC provides that in order to obtain a “certificate of approval” a Bible College must establish to the IBHE’s satisfaction that: “[t]he caliber and content of each course or program of instruction, training, or study shall be reasonable and adequate for achieving the stated degree objectives for which the course or program is offered.” 23 Ill. Adm. Code § 1030.30(a)(2).

But again, the State lacks both the constitutional authority and practical competency to establish any standards by which to judge whether a course at a Bible college is “reasonable and adequate for achieving the stated degree objectives.”

For example the stated objective and mission of Providence College, which is a ministry of Northwest Bible Church, is “to provide affordable education that trains full time workers for Independent Baptist church ministry, including those called by God to serve as pastors and church secretaries.” Unless the State administration en masse “goes down to the river” it cannot competently determine whether the courses offered by Providence College are “reasonable and adequate for achieving the stated degree objectives.” The same holds true for a degree in Biblical Studies from Dayspring Bible College and Seminary, which is a ministry of Quentin Road Bible Church, or a degree in Urban Ministry from the United Faith Christian Institute and Bible College, which is a ministry of the United Faith Missionary Baptist Church.

The State’s memorandum of law relies almost entirely on pre-Hosanna school cases which are at odds with Hosanna’s holding and rationale. See, e.g. New Jersey State Board of Higher Education v. Shelton, 448 A.2d 470 (1982) (which involved a religious

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school that offered secular instruction) and State of Tennessee ex rel. McLemore v.

Clarksville School of Theology, 636 S.W.2d 706 (1982). The decision in HEB, though rendered before Hosanna-Tabor, is more consistent with the Supreme Court’s Establishment Clause jurisprudence.

Wherefore, Defendant’s motion to dismiss should be denied.

II. Plaintiffs have sufficiently pled a claim under the Free Exercise Clause of the First Amendment to the United States Constitution.

The aforementioned Establishment Clause arguments against the State’s entanglement in religious education apply with equal or greater force to the Free Exercise Clause analysis. In fact, the Supreme Court in Hosanna-Tabor explained how the two clauses, while at times in tension, work together and with greater force to protect religious institutions from State interference in “internal governance” and decisions which affect the faith and mission of the religious school itself. 132 S. Ct. at 706; see also Michael W. McConnell, Reflections on Hosanna-Tabor, 35 Harv. J.L. & Pub. Pol'y 822 (2012).

Rather than address the Supreme Court’s decision in Hosanna-Tabor, Illinois relies heavily on the Supreme Court’s holding in Employment Division v. Smith, 494 U.S. 872 (1990), to justify its ability to interfere with and set the standards for religious, postsecondary education. But that reliance is misplaced in light of the significant distinction identified in Hosanna-Tabor between “regulation of only outward physical acts,” which would generally not warrant strict scrutiny under Smith, and government interference 11

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with an internal decision of a church school “that affects the faith and mission of the church itself," which merits absolute immunity under Hosanna-Tabor. Reliance on Smith is also misplaced because this case, unlike Smith, involves the “communication of religious beliefs”—from, e.g., a Bible teacher to Bible student.

Even under Smith, Illinois’s regulation of post-secondary religious education violates the Free Exercise Clause. Under Smith, the State argues that the First Amendment is not violated because the acts in question do not single out religious schools but apply “across the board to all institutions seeking to issue degrees” and are in that sense “neutral laws of general applicability.” Dkt. 25 at page 16. But as the Supreme Court later held Church of Lukumi Babalu Aye v. City of Hialeah, even neutral and generally applicable laws are subject to strict scrutiny if (1) the government is allowed to make individualized assessments, or (2) a “hybrid rights” claim exists. 508 U.S. 520, 537 (1993). The Illinois regulations violate both (1) and (2).

First, courts have recognized that the government makes individualized assessments when the regulatory scheme in question allows for “a case-by-case evaluation of the proposed activity of religious organizations” where “officials may use their authority to individually evaluate and either approve or disapprove of [religious organizations] in potentially discriminatory ways.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1225 (11th Cir. 2004). As stated in Smith, such a scheme “is one in which case-bycase inquiries are routinely made, such that there is an ‘individualized governmental

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assessment of the reasons for the relevant conduct’ that ‘invite[s] considerations of the particular circumstances’ involved in the particular case"); see also Westchester Day Sch. v. Village of Mamaroneck, 417 F. Supp. 2d 477, 542 (S.D.N.Y. 2006) (quoting Living Water Church of God v. Charter Township of Meridian, 384 F. Supp. 2d 1123, 1130 (W.D. Mich. 2005): the application of even a neutral law of general applicability will thus constitute an individualized assessment upon its application to particular facts where the system does not involve a “mere numerical or mechanistic assessment” but rather “criteria that are at least partially subjective in nature”).

Here, the IAC clearly provides that the IBHE can make individualized assessments when it examines whether a Bible college, for example, has adequate faculty and curricula. The Code provides that the IBHE can individually assess whether: a. The caliber and content of each course or program of instruction, training, or study shall be reasonable and adequate for achieving the stated degree objectives for which the course or program is offered. 23 Ill. Adm. Code § 1030.30(a)(2); … c. The education, experience and other qualifications of faculty, staff and instructors shall reasonably ensure that the students will receive education consistent with the objectives of the course or program of study. 23 Ill. Adm. Code § 1030.30(a)(4); … g. Exceptions may be made for professional experience, equivalent training and other qualifications; however, these should be the exceptions and not the rule in meeting faculty qualification requirements. These exceptions for faculty may be recommended by the Board staff. 23 Ill. Adm. Code § 1030.30(a)(4)(A)(v).

These criteria empower state officials to use their discretion to evaluate the content of every course and program offered by a Bible college and to approve and disapprove

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accordingly. Likewise, it grants to state officials the discretion to grade every experience, qualification, and the training of every faculty, staff and instructor employed by a Bible college and to approve or disapprove accordingly. In fact, the criteria empower state officials to determine whether the course content and faculty are fit to fulfill the biblically driven educational mission of a Bible college.

Second, as set forth below, Plaintiffs have a “hybrid rights claim” 4 because the State’s regulation of their provision of religious, post-secondary education not only violates the Free Exercise Clause but also the Establishment Clause, their freedom of speech and their freedom of association. Therefore, either way, and even if this Court finds the State’s post-secondary, education regulatory scheme to be neutral and generally applicable, the State must show that its regulations, survive “strict scrutiny,” i.e. that it is 1) supported by a compelling governmental interest of the highest order, and 2) narrowly tailored to achieve that interest. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) III. Plaintiffs have sufficiently pled a claim under the Free Speech Clause of the First Amendment to the United States Constitution.

The State challenges Plaintiffs’ free speech claim by first denying that the regulations restrict Plaintiffs’ speech activities, insisting that Plaintiffs’ speech activities are “unaffected” by the regulations. Dkt. 25 at p. 20. Even a cursory review of the challenged regulations shows that is simply untrue.

A hybrid rights claim is one where free exercise and any other protected liberty are burdened by government.

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For example, the Private College Act and the Academic Degree Act both define “degree” as “. . . any designation, appellation, series of letters or words, or other symbol which signifies or purports to signify that the recipient thereof has satisfactorily completed an organized academic program of study beyond the secondary school level.” 110 ILCS 1005/1 and 110 ILCS 1010/2. The statutes define “degree” so broadly that any method of communicating student achievement is foreclosed. Indeed, it is difficult to imagine any way to communicate student achievement without infringing on the State’s monopoly on speech expressed through letters, words, or symbols.

More to the point, by forbidding the colleges from issuing “Bachelor’s,” “Master’s,” or “Doctorate” degrees, the State directly restricts the colleges’ ability to accurately describe the nature of their curriculum. Furthermore, by seeking to regulate everything from the “caliber and content” of Plaintiffs’ courses to determining who is or is not qualified to teach at the colleges, the Illinois Administrative Code also restricts the Plaintiffs’ speech activities. To suggest that Plaintiffs’ speech activities are “unaffected” by these regulations is to suggest that the State is ineffectual.

The Supreme Court’s recent decision in Reed v. Gilbert, supports the viability of Plaintiffs’ Free Speech claim. As reiterated therein, “[c]ontent-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and maybe justified only if the government proves that they are narrowly tailored to serve compelling state interests.” 2015 U.S. LEXIS 4061, *14 (June 18, 2015) citing R. A.

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V. v. St. Paul, 505 U. S. 377, 395 (1992); Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 115, 118 (1991). And “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Id. Here, the State is indisputably regulating what post-secondary schools can and cannot say about their students’ achievements. On its face, the Academic Degree Act prohibits schools from telling their students or others that they have “satisfactorily completed an organized academic program of study beyond the secondary school level.” 110 ILCS 1005/1. This prohibition is clearly “content-based” because it draws a “distinction[] based on the message a speaker conveys.” Reed, 2015 U.S. LEXIS at *15.

The message colleges wish to convey, and students and their employers want to hear, is that they have “satisfactorily completed an organized academic program of study beyond the secondary school level.” The Academic Degree Act prohibits colleges from saying precisely that via “any designation, appellation, series of letters or words, or other symbol which signifies or purports to signify” that message. “Signify” is a verb which means “to have or convey a particular idea.” Roget’s II, The New Thesaurus.

Like the content-based sign law that did not survive strict scrutiny in Reed, the prohibition of the Academic Degree Act depends entirely on the communicative content of the “designation, appellation of letters or words, or other symbol” used. The State is not prohibiting schools from using letters, words, or symbols in general, for that would

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be absurd. Rather the State is only prohibiting schools from using letters, words, or symbols if they convey the particular idea that the student has satisfactorily completed an organized academic program of study beyond the secondary school level. That restriction is patently and unequivocally a content-based restriction.

As the Supreme Court held in Reed, “[a] law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” quoting Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 429 (1993). And further: innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws—i.e., the ‘abridg[ement] of speech’—rather than merely the motives of those who enacted them. …. ‘The vice of content-based legislation . . . is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.’ (internal citations omitted).

Here, the regulatory scheme is even more susceptible to the suppression of disfavored speech because the State claims the exclusive authority to determine which schools are “legitimate” enough to use letters, words, or symbols to convey the particular idea that their students have satisfactorily completed an organized academic program of study beyond the secondary school level. The threat of suppressing disfavored speech found in post-secondary teachings is imminently unavoidable under the scheme here because the IBHE has the power to approve some curricula and those who teach it while disapproving others based on the determination of select state

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officials. In particular here, the IBHE is authorized to determine the quality and favorability of religious postsecondary education programs and to disable those that do not fit the State’s preferences for such education by controlling the words employed to signify the students’ completion of those programs. There can be no doubt that the regulatory scheme here profoundly lends itself to the vice of content-based discrimination.

The State also disputes that a religious school which offers a religious curriculum, and then marks achievement in that curriculum with a religious degree, is engaged in religious speech. The State maintains that “[a] school is not engaging in ‘religious speech’ activity when it confers a ‘degree[!]’” (explanation point supplied) Dkt. 25 at p.

20. Instead, the State argues that the activity of granting degrees must be characterized as commercial speech. In support, the State cites to Ibanez v. Florida Dept. of Bus. & Prof. Regulation, which stated that “use of the CPA and CFP designations qualifies as ‘commercial speech.’” 512 U.S. 136, 138 (1994). The titles of Certified Public Accountant and Certified Financial Planner, however, are patently inapposite to a religious designation such as a “Bachelor’s degree in Reformed Theology,” that might be obtained from a religious school after completing religious instruction. Moreover, the State’s review process does not target fraud in advertising or implicate its professional licensing authority, but rather targets the content of religious educational programs and

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the competence of its faculty members to impart an education with religious objectives in mind.

The State also cites to Nova University v. Educational Institution Licensure Commission, which remarked that “degree conferral is business conduct. . . .” 483 A.2d 1172, 1181 (D.C 1984). In Nova, however, the university was not religious and the case addressed the granting of doctorates in Public Administration. Id. at 1172. The cases that the State relies on are distinct from the one at hand. The granting of religious degrees subsequent to the completion of religious study at a religious college is not just any commercial endeavor, rather, it is uniquely religious speech and any restrictions on it are therefore subject to greater scrutiny.

Even if the commercial speech doctrine did apply, the State’s arguments are still meritless. Commercial speech analysis begins with a four part test in which a court must: “determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566 (1980).

Plaintiffs’ speech activities are neither unlawful nor misleading. The State has not claimed, nor can it show, that the curriculum offered by these colleges and the degrees they wish to grant are dishonest, false, or otherwise misleading. Nor does the State have 19

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a substantial interest in restricting the speech. By making exceptions for other religious schools with privileged grandfathered status, the State cannot claim to have a substantial interest in restricting speech in this case. Moreover, by making exceptions to the language of the statutes in allowing designations such as “diploma” and “certificate” the State has further demonstrated that its interest in applying the regulations is not substantial.

Even if the State did have a substantial interest in restricting free speech, the regulations are more extensive than necessary to serve its interests. At the very least, the State’s broad definition of “degree,” which prohibits Plaintiffs from marking student achievement in any conceivable way, is certainly more extensive than necessary. For example, the State could simply prohibit the college from claiming it has been approved by the State. Likewise, by prohibiting religious colleges from granting “Bachelor’s” or “Master’s” degrees which accurately describe the nature of their curriculum and teaching, and which the State is unqualified to evaluate anyway, the State’s regulations are more extensive than necessary. Banning the colleges’ from issuing degrees that accurately describe their religious curriculum does not advance the interest of consumer protection. On the contrary, by banning truthful speech, the consumer is prevented from obtaining relevant information likely to assist him in the decision-making process.

To the extent that the State relies on Association of Christian Schools International v.

Stearns, 679 F.Supp.2d 1083 (C.D. 2008), the State has not shown that it is in anyway

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relevant to the case at hand. In that case, the University of California evaluated applicants to its school system in four different ways. Id. at 1088. One of the “paths” by which an applicant could be deemed qualified for admission was to have demonstrated proficiency in seven specific subjects outlined by the university. Id. The court held that it was proper for the university to evaluate the programs of Christian high schools to determine whether proficiency in the relevant subjects was attained. The University of California, however, did not seek to determine the qualifications that the Christian school teachers had to have, nor did the University seek to control the way in which the high school sought to mark student achievements. Moreover, none of the courses that were evaluated by the university were religious. While the university was permitted to evaluate the courses a student took in high school, the university did not in any way restrict the high school’s free speech activities.

The State also cites to Institute for Creation Research Graduate School v. Texas Higher Education Coordination Board, 2010 WL 2522259 (W.D. Tex. 2010), which held that the Education Board was within its rights to review and reject plaintiff’s Master of Science degree in Science Education “from a Biblical scientific creationist viewpoint.”

Id. at *2. Although this case is closer to the point than Stearns, in full context even this case ultimately cuts against the State. The court did not rule that the plaintiff cannot grant degrees, it simply did not believe that Creationism is science. The court stated: “The Board has simply declined to certify ICRGS's program as a Master of Science in Science Education. ICRGS might well apply for a certificate of authority to offer the 21

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same program as, for instance, a Master of Arts program in Creation Studies. Or it might decide to offer a religious degree; in that case, it would be exempt from the requirement to obtain a certificate of authority to offer the degree in Texas.”

Id. at *61 (W.D. Tex. June 18, 2010).

Whether the Texas Education Board was correct in determining that Creationism is not science is not an issue in this case. What is at issue is whether Plaintiffs can grant degrees, a question that was answered in the affirmative by the Institute for Creation Research case.

Finally, the State presents a parade of horribles if Plaintiffs’ free speech rights are upheld. The State claims that Plaintiffs’ requested relief “is tantamount to saying there can never be regulation of the degree granting practices of any institution.” Dkt. 25 at p.

21. Yet, this assertion is undermined by the mistaken premise that Plaintiffs are making a facial challenge. In fact, the second paragraph in the Amended Complaint specifically provides that, “Plaintiffs do not challenge the State’s authority to regulate secular institutions.” Dkt. 19 at ¶ 2. The Prayer for Relief clearly seeks a declaratory judgment that the regulations, “as applied to Illinois Bible colleges,” violate various Constitutional provisions. In sum, Plaintiffs have stated a plausible cause of action under the Free Speech Clause of the First Amendment.

IV. Plaintiffs have sufficiently pled a Freedom of Association claim under the First Amendment to the United States Constitution.

The Supreme Court has long held that “the [constitutional] right to organize voluntary religious associations to assist in the expression and dissemination of any 22

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religious doctrine… is unquestioned.” Watson v. Jones, 80 U.S. 679, 728-729 (1872). The State cannot deny that the religious schools represented in this case are voluntary religious associations which have been organized to assist in the expression and dissemination of religious doctrine. In fact, at their inception, colleges and universities were self-regulating associations of students and teachers which were free to determine the qualifications of membership within the association. Marcia L. Colish, Medieval Foundations of the Western Intellectual Tradition, 400-1400, (New Haven: Yale Univ.

Pr., 1997), p. 267.

The State also cannot deny that the students who attend these schools do so voluntarily and often in response to what they believe is their divine calling to assist their faith group in the expression and dissemination of the faith—e.g. as a pastor, church secretary, or theologian. If students chose to leave the church or religious school, they need not enroll or continue enrolling semester after semester.

The Supreme Court has more recently held that “the right to freedom of association is a right enjoyed by religious and secular groups alike.” Hosanna-Tabor, 132 S.Ct. at 706. Despite the State’s argument to the contrary, the State’s regulation of postsecondary religious education imposes penalties and withholds benefits from individuals because of their membership in a group seeking anonymity from the State.

The Bible colleges in this case do not wish for the State to know or interfere with their internal organization or affairs. The regulations in question give the State and IBHE the

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ability to examine their internal organization and affairs and authorize the IBHE to examine the Bible colleges’ funding, faculty, and curricula. If the colleges are not “state approved,” the state may impose penalties and withhold from them the benefit of recognizing student achievement and otherwise operating as a “degree granting institution.” As such, Plaintiffs have stated a Free Association cause of action under the under the First Amendment.

V. Plaintiffs have sufficiently pled a claim under the Equal Protection Clause of the First Amendment to the United States Constitution.

The Equal Protection Clause provides in pertinent part: “No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws,” U.S. Const. amend XIV, § 1. This is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). The Academic Degree Act, however, explicitly seeks to protect certain “legitimate” institutions and their students over and against others. 110 ILCS 1010/1. As set forth in the complaint at ¶¶19-37, the Academic Degree Act and Private College Act carve out exceptions for certain religious schools and deny those exceptions to Illinois Bible Colleges—even though they are similarly situated as private, post-secondary religious schools. By doing so, the State treats the Bible colleges and the students who attend them on a less than equal basis.

In prohibiting college students from obtaining degrees from religious postsecondary educational institutions which the IBHE has not “approved” or which are not 24

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“grandfathered,” the State is inhibiting their ability to earn a living by making their education less valuable to the community. The U.S. Supreme Court has recognized that “the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure.” Truax v. Raich, 239 U.S. 33, 41 (1915).

The fact that the State simply exempted all existing schools not only defeats any claim to a “compelling government interest” in denying Bible Colleges the ability to grant degrees, but it also has the effect of misleading students, parents, and employers into thinking that all the older schools and all their degree programs are “state approved” or “legitimate”—when, in fact, an older school may be no more “legitimate” under current state standards or even a “diploma mill.”

In alleging the disparate treatment of grandfathered religious post-secondary educational institutions with later established, similarly situated institutions, Plaintiffs have stated a cause of action under the Equal Protection Clause.

VI. Plaintiffs right to a broader exemption from the Private Business and Vocational School Act. As shown above, the Constitution protects a Bible college’s freedom to educate and disciple students in programs that equip the students to integrate their religion or faith into their life, career, or work. This freedom must not only extend to the teaching of indisputably “religious” subjects like Urban Ministry or Biblical Studies but must also extend to those subjects the State may contend are not “religious.”

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For example, the State may contend that Dayspring Bible College’s culinary course is “secular” and not “religious”—even though it is taught from a specific Biblical perspective and meant to train students to serve in soup kitchens, Christian camps, and Church kitchens. Dkt. 19-2 at ¶ 8. While the IBHE may, perchance, have the competency to determine whether a culinary instructor is properly teaching students how to make an omelet, it still lacks the competency and authority to determine whether the content of the course is (emphasis supplied) “reasonable and adequate for achieving the stated degree objectives for which the course or program is offered,” 23 Ill. Adm. Code § 1030.30(a)(2); or whether the instructors’ qualifications are sufficient to “reasonably ensure that the students will receive education consistent with the objectives of the course or program of study.” 23 Ill. Adm. Code § 1030.30(a)(4). For Dayspring Bible College and its students, a well-cooked omelet is not an end in itself but a means to the stated, religious objective of better serving God, the Church, and their “neighbors.”

Since the stated degree objectives of the Bible colleges and their degree programs are inherently religious, the broader exemption requested is necessary in order to avoid State entanglement in the religious mission and objectives of Illinois Bible Colleges.

WHEREFORE, Plaintiffs request that this Court deny the Defendant’s motion to dismiss and grant such other relief as this Court deems appropriate.

PLAINTIFFS By: _____/s/ John W. Mauck___________________ One of Plaintiff’s Attorneys 26

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John W. Mauck Noel W. Sterett Sorin Leahu Mauck & Baker, LLC One North LaSalle Street, Suite 600 Chicago, Illinois 60602 P: (312) 726-1243 F: (866) 619-8661

Erik Stanley Byron Babione Alliance Defending Freedom 15100 North 90th Street Scottsdale, Arizona 85260 P: (480) 444-0020 F: (480) 444-0028 *Appearing Pro Hac

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ILLINOIS BIBLE COLLEGES ASSOCIATION, et al.,

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

Plaintiffs, v.

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

TO:

No: 15 C 444 Judge Sharon Johnson Coleman

NOTICE OF FILING Michael T. Dierkes, Thomas A. Ioppolo, Illinois Attorney General General Law Bureau 100 West Randolph Street, 13 th Floor Chicago, Illinois 60601 Telephone: (312) 814-7198

Please Take Notice that on Tuesday, June 23, 2015, Plaintiffs Illinois Bible Colleges Association et al. caused to be filed, Plaintiffs’ Response to Defendant’s Motion to Dismiss, a copy of which is attached.

Respectfully submitted this 23rd day of June, 2015. s/ John W. Mauck Noel W. Sterett Sorin A. Leahu Mauck & Baker, LLC One North LaSalle Street, Suite 600 Chicago, Illinois 60602 Telephone: (312) 726-1243 Facsimile: (866) 619-8661

John W. Mauck

Erik W. Stanley Byron J. Babione Alliance Defending Freedom 15100 North 90 th Street Scottsdale, Arizona 85260 Telephone: (480) 444-0020 Facsimile: (480) 444-0028

1

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CERTIFICATE OF SERVICE I, John W. Mauck, an attorney certify that on June 23, 2015, I caused copies of the foregoing documents to be served on all persons who are of record via the Court’s electronic filing system. s/

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John W. Mauck

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