IBCA v. Illinois Board of Higher Education Appellant Breif

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No. 16-1754 ______________________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

______________________________________________________________________________ Illinois Bible Colleges Association, et. al, Plaintiffs-Appellants, v.

Lindsay K. 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 No. 15-cv-444, Honorable Judge Sharon J. Coleman Presiding. _________________________________________________ BRIEF OF THE PLAINTIFFS-APPELLANTS ILLINOIS BIBLE COLLEGES ASSOCIATION, ET AL. AND REQUIRED SHORT APPENDIX _________________________________________________ John W. Mauck Noel W. Sterett Mauck & Baker, LLC One N. LaSalle Street, Suite 600 Chicago, IL 60602 P: (312) 726-1243 F: (866) 619–8661

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

Counsel for Plaintiffs-Appellants

Oral Argument Requested

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CIRCUIT RULE 26.1 DISCLOSURE STATEMENT (1) The full name of every party that the attorney represents in this case: Illinois Bible Colleges Association, Providence Baptist College, Dayspring Bible College and Seminary, United Faith Christian Institute and Bible College, Civil Liberties for Urban Believers, and Leigh Pietsch.

(2) The name of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the District Court or before an administrative agency) or are expected to appear for the party in this court.

Mauck & Baker, LLC, and Alliance Defending Freedom, Inc. (3) (i) (ii)

The aforementioned parties have no parent corporations and are not for-profit corporations.

There are no publicly held companies that own 10% or more of the parties’ stock.

Attorney’s Signature: /s/ John W. Mauck______

Date: June 16, 2016_

Attorney’s Printed Name: _John W, Mauck ____ Counsel of Record pursuant to Circuit Rule 3(d)

Yes:

X

Address: Mauck & Baker, LLC, One N. LaSalle Street, Suite 600, Chicago, IL 60602 Phone Number: (312) 726–1243

Fax Number: (866) 619–8661

Email Address: jmauck@mauckbaker.com

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TABLE OF CONTENTS Page CIRCUIT RULE 26.1 DISCLOSURE STATEMENT .................................................... i TABLE OF CONTENTS ................................................................................................ ii TABLE OF AUTHORITIES ......................................................................................... iv JURISDICTIONAL STATEMENT ............................................................................... 1 ISSUES PRESENTED FOR REVIEW ......................................................................... 2 STATEMENT OF THE CASE ....................................................................................... 3 I.

The Regulatory Scheme ................................................................................. 4

II.

The State’s Actions with Respect to Specific Colleges ............................... 10 A. Providence Baptist College ............................................................... 10 B. Dayspring Bible College and Seminary .......................................... 11 C. United Faith Christian Institute and Bible College........................ 12

III.

The Plaintiffs’ Burdens as Pled................................................................... 13

SUMMARY OF ARGUMENT ..................................................................................... 14 STANDARD OF REVIEW ........................................................................................... 16 ARGUMENT ................................................................................................................ 16 I.

Plaintiffs Sufficiently Pled a Claim under the Establishment Clause of the First Amendment to the United States Constitution ................................ 17 A. The State may not prefer one form of religious education over others .............................................................................................. 18 B. The State may not establish standards for who should teach and what they must teach at post-secondary religious schools. ........................... 23

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II.

Plaintiffs Sufficiently Pled a Claim under the Free Exercise Clause of the First Amendment to the United States Constitution ................................ 27

III.

Plaintiffs Sufficiently Pled a Claim under the Free Speech Clause of the First Amendment to the United States Constitution ................................ 31

IV.

Plaintiffs Sufficiently Pled a Freedom of Association Claim under the First Amendment to the United States Constitution ................................ 38

V.

The State Does Not have a Compelling Government Interest to Infringe upon the Fundamental Rights of Illinois Bible Colleges and Their Students ....................................................................................................... 39

VI.

Plaintiffs’ Right to a Broader Exemption from the Private Business and Vocational Schools Act................................................................................. 42

VII.

The Plaintiff Students’ Constitutional rights ............................................ 42

CONCLUSION............................................................................................................. 43 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7)(B) ............................... 46 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 30(d) ........................................ 47 CERTIFICATE OF SERVICE ..................................................................................... 48

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TABLE OF AUTHORITIES FEDERAL CASES

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Association of Christian Schools Int’l v. Stearn, 679 F. Supp. 2d 1083 (C.D. Cal. 2008)................................................................... 35 Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .............................................................................. 29 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................................ 16 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) ................................................................................................ 29 Cincinnati v. Discovery Network, Inc., 507 U. S. 410 (1993) ............................................................................................... 34 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ................................................................................................ 40 Clark v. Jeter, 486 U.S. 456 (1988) ................................................................................................ 40 Employment Division v. Smith, 494 U.S. 872 (1990) .................................................................................... 28, 29, 31 Everson v. Bd. of Educ., 330 U.S. 1 (1947) .................................................................................................... 17 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). ............................................................................................... 31 Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1 (1929) .............................................................................................. 17, 18 Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012) .............................................................................. passim Ibanez v. Florida Dept. of Bus. & Prof. Regulation, 512 U.S. 136 (1994). ............................................................................................... 36

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Inst. for Creation for Research Graduate Sch. v. Tex. Higher Educ. Coordinating Bd., No. A-09-CA-382-SS, 2010 U.S. Dist. LEXIS 60699 (W.D. Tex. June 18, 2010) ............................... 35, 36 Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) .................................................................................. 18 Larson v. Valente, 456 U.S. 228 (1982) ................................................................................................ 22 Lemon v. Kurtzman, 403 U.S. 602 (1971) ......................................................................... 14, 17, 20 Living Water Church of God v. Charter Township of Meridian, 384 F. Supp. 2d 1123 (W.D. Mich. 2005) ............................................................... 29 Locke v. Davey, 540 U.S. 712 (2004) .......................................................................................... 14, 43 Meade v. Moraine Valley Cmty. Coll., 770 F.3d 680 (7th Cir. 2014) .................................................................................. 16 Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) .............................................................................. 29 Mitchell v. Helms, 530 U.S. 793 (2000) ................................................................................................ 23 New Jersey State Board of Higher Education v. Shelton, 448 A.2d 470 (1982) ................................................................................................ 26 New Orleans v. Dukes, 427 U.S. 297 (1976) ................................................................................................ 41 Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015) .................................................................................. 33 Nova University v. Educational Institution Licensure Commission, 483 A.2d 1172 (D.C 1984)....................................................................................... 37 R. A. V. v. St. Paul, 505 U. S. 377 (1992) ............................................................................................... 32

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Reed v. Town of Gilbert 135 S. Ct. 2218 (2015) .....................................................................................passim Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) ................................................................................................ 39 Thulin v. Shopko Stores Operating Co., 771 F.3d 994 (7th Cir. 2014) .................................................................................. 16 Truax v. Raich, 239 U.S. 33 (1915) .................................................................................................. 43 Watson v. Jones, 80 U.S. 679 (1872) ...................................................................................... 14, 18, 31 Westchester Day Sch. v. Village of Mamaroneck, 417 F. Supp. 2d 477 (S.D.N.Y. 2006) ..................................................................... 29 STATE COURT CASES

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HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627 (2007) .......................................................................... passim State of Tennessee ex rel. McLemore v. Clarksville School of Theology, 636 S.W.2d 706 (1982) ............................................................................................ 26 STATUTES, RULES, ORDINANCES, AND OTHER AUTHORITIES 28 U.S.C. ยง 1331 ............................................................................................................. 1 28 U.S.C. ยง 1291 ............................................................................................................. 1 42 U.S.C. ยง1988(b) ....................................................................................................... 45 Fed. R. Civ. Pro. 12(b)(6) ......................................................................................passim Illinois Academic Degree Act, 110 ILCS 1010/0.01 et seq ...............................................................................passim Illinois Administrative Code, 23 Ill. Adm. Code ยง 1030 et seq .......................................................................passim Illinois Private Business and Vocational Schools Act of 2012, 105 ILCS 426 et seq .........................................................................................passim vi

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Illinois Private Colleges Act, 110 ILCS 1005/.01 et seq, ................................................................................passim U.S. CONST. amend. I..........................................................................................passim U.S. CONST. amend XIV, § 1...............................................................................passim SECONDARY SOURCES Joireman, F. Sandra, “Anabaptism and the State: An Uneasy Coexistence,” University of Richmond (2009).................................................................................... 21 Matthew 28:19 (New International Version).............................................................. 17 Michael W. McConnell, Reflections on Hosanna-Tabor, 35 Harv. J.L. & Pub. Pol'y 822 (2012) ..................................................................................................................... 28 Roget’s II, The New Thesaurus ................................................................................... 33

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JURISDICTIONAL STATEMENT I.

District Court subject-matter jurisdiction.

The District Court had federal question jurisdiction under 28 U.S.C. ยง 1331.

Plaintiffs-appellants, Illinois Bible Colleges Association et. al., claim that the Defendant violated their rights under the Establishment Clause, Free Exercise Clause, Free Speech Clause, and the Freedom of Association as protected by the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs-appellants include bible colleges, an unincorporated association of bible colleges, and a bible college student who is a citizen of the State of Illinois. Defendant-appellee, Lindsay K. Anderson, is the Chair of the Illinois Board of Higher Education, and is sued in her official capacity.

II.

Court of Appeals jurisdiction.

This Court has jurisdiction under 28 U.S.C. ยง 1291. This is an appeal from the

District Court of a final judgment dismissing the case pursuant to Fed. R. Civ. Pro. 12(b)(6).

III.

Timeliness of the appeal.

On March 28, 2016, the District Court entered an order dismissing the case for

failure to state a claim under Fed. R. Civ. Pro. 12(b)(6). No motion was filed which would toll the time to file the Notice of Appeal. Plaintiffs-appellants filed their notice of appeal on April 6, 2016, within the 30 days provided by the rules.

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ISSUES PRESENTED FOR REVIEW 1. The Illinois Board of Higher Education maintains a regulatory scheme that requires all colleges established after certain dates to obtain State approval before operating and granting degrees. These regulations permit the State to evaluate the religious education, including course content and religious faculty, of religious bible colleges. Do Illinois bible colleges have a constitutionally protected right to operate and grant religious degrees without State oversight and approval?

2. Whether the First Amended Complaint sufficiently stated a claim that Illinois bible colleges have a constitutionally protected right to operate and grant religious degrees without State oversight and approval?

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STATEMENT OF THE CASE This case is about the freedom of Illinois bible colleges to provide religious postsecondary education and grant degrees without the Illinois Board of Higher Education’s (“IBHE”) oversight and approval of their faculty, course content, or facilities. Supp. App., p. 6. As pled in the First Amended Complaint, these religious colleges are post-secondary educational ministries of churches. Id. at 7. They provide Christian education for those called by God to integrate their studies into their life, career, or work. Id. at 8. The colleges offer exclusively religious programs.

Id. The Plaintiff colleges oppose seeking State approval for their programs for doctrinal reasons. Id. at 16. The colleges believe that obtaining State approval in order to operate and grant degrees interferes with their freedom to direct religious education as they see fit. Id. The colleges further believe that obtaining State approval of their religious programs abdicates the Church’s authority to guide the teaching of the colleges and subordinates to the State the Church’s responsibility to God in deciding how to properly educate students in religious teaching. Id. In addition, the colleges believe that seeking State approval dilutes their religious doctrine and that the State’s requirements interfere with their duty to decide who is and who is not qualified to offer religious instruction. Id. The colleges herein do not challenge the State’s authority to regulate secular institutions. Id. at 6.

Three Illinois statutes and a series of regulations contained within the Illinois Administrative Code regulate post-secondary education and the granting of degrees.

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Id. at 10-16. The regulations, however, exempt numerous universities and colleges in perpetuity via two separate “grandfather” clauses. See infra.

I.

The Regulatory Scheme 1 The first statute, the Academic Degree Act (“ADA”), provides that: “Unless a degree granting institution was authorized to operate in Illinois, or was in operation, on August 14, 1961, it shall not award any earned degree until one year after it has filed a written notice with and until such institution has received the authorization and approval of the Board.”

110 ILCS 1010/4(a).

Section 2 of the ADA defines “degree granting institution” as: “an educational facility maintained by any person, partnership, public or private corporation or public body and operating as a school, academy, institute, private junior college, college, university or entity of whatever kind which furnishes or offers to furnish instruction leading toward or prerequisite to an academic or professional degree beyond the secondary school level . . . .”

110 ILCS 1010/2(a).

Section 2 of the ADA defines “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 1010/2(b).

The ADA mandates that all degree-granting institutions, including religious institutions, are required to obtain the State’s prior authorization to operate and grant degrees in Illinois. A religious institution may not award any “degree” in any field unless it first obtains appropriate authorization from the IBHE. Because the 1

Copies of the statutes have been included in the Supplemental Appendix.

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ADA’s definition of “degree” is broader than the use of typical appellations such as “Associate’s,” “Bachelor’s,” “Master’s,” or “Doctorate,” Plaintiffs contend that even “diplomas” and “certificates,” which signify or purport to signify completion of an organized academic program of study beyond the secondary school level, fall within the scope of the act. Supp. App., p. 11-12.

According to the ADA’s “grandfather clause,” this restraint on institutions which seek to recognize student achievement beyond the secondary level does not apply to any institution which was approved, or which was operating, prior to August 14, 1961. 110 ILCS 1010/4(a). As set forth in the First Amended Complaint, the IBHE website confirms this stating, “[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.” http://www.ibhe.org/Academic%20Affairs/Applications/Independent/FAQ.htm.

Supp. App., p. 10.

The ADA provides for penalties stating: “Any person, firm, corporation, partnership, association, degree granting institution, or other entity making any false statement in any notice or amendment thereto filed pursuant to Section 4 of this Act is guilty of perjury.

Any other violation of this Act shall constitute a Class 4 felony. Each violation shall constitute a separate offense.”

110 ILCS 101/8.

The second statute is the Private College Act (“PCA”). Whereas the ADA regulates post-secondary institutions’ degree-granting function, the PCA regulates their operating function. The PCA provides that:

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“After July 17, 1945, no person or group of persons may establish and operate or be permitted to become incorporated for the purpose of operating a postsecondary educational institution without obtaining a certificate of approval from the Board so to do.”

110 ILCS 1005/2.

The PCA defines “post-secondary educational institution” as: “a privately-operated college, junior college or university offering degrees and instruction above the high school level either in residence or by correspondence.”

110 ILCS 1005/1.

The PCA, like the ADA, defines “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.

Under the PCA, all degree-granting institutions, including religious institutions, are required to obtain State approval to operate and grant degrees in Illinois. A religious institution may not award any “degree,” so defined, in any field unless it first obtains approval from the IBHE. Like the ADA, the PCA defines “degree” more broadly than “Associate’s,” “Bachelor’s,” “Master’s,” or “Doctorate.” To obtain a certificate of approval, an institution must meet the adopted standards of section 4 of the PCA which provides that: “Upon the filing of an application for a certificate of approval the Board shall make an examination to ascertain: 1. That each course of instruction to be offered or given is adequate, suitable, and proper; 2. That the fee to be charged for the courses of instruction, and the 6

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conditions and terms under which such fees are to be paid are reasonable; 3. That an adequate physical plant and adequate facilities are provided; 4. That the members of the teaching staff are adequately prepared to fulfill their instructional obligations; 5. That the institution does not promise or agree to any right or privilege in respect to professional examinations or to the practice of any profession in violation of the laws of this State; 6. That the institution does not offer inducements that are designed to deceive the prospective student or make any promises which it does not have the present means or ability to perform.

If the examination shows that the applicant has such qualifications a certificate of approval shall be issued.”

110 ILCS 1005/4.

The PCA also imposes penalties stating: “Any person violating any provision of this Act shall be guilty of a petty offense and fined not less than $25 nor more than $100. Each day’s violation of any provision of this Act shall constitute a separate offense.”

110 ILCS 1005/15.

Regulations contained in the Illinois Administrative Code (“IAC”), 23 Ill. Adm. Code § 1030, are further used to evaluate institutions seeking authorization to operate and grant degrees. The IAC contains, inter alia, the following requirements for IBHE approval: 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). b. Degree programs must meet certain credit hour requirements. 23 Ill. Adm. Code § 1030.30(a)(2)(C).

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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). d. At 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. 23 Ill. Adm. Code § 1030.30(a)(4)(A). e. 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). f. Faculty providing undergraduate general education coursework shall possess, at a minimum, a master’s degree in the field of instruction. 23 Ill. Adm. Code § 1030.30(a)(4)(A)(i). g. Faculty 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). h. 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). i. The faculty, staff and instructors of the institution shall be of good professional reputation and character. 23 Ill. Adm. Code §1030.60(a)(12).

The IAC permits the State to investigate colleges and revoke the certificate of approval, operating authority, or degree-granting authority of any college found to be noncompliant. 23 Ill. Adm. Code §§1030.70-1030.80.

Completing the State’s regulatory scheme is a related statute called the Private Business and Vocational Schools Act of 2012 (“PBVSA”). This statute provides that: 8

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“No person or group of persons subject to this Act may establish and operate or be permitted to become incorporated for the purpose of operating a private business and vocational school without obtaining from the Board a permit of approval, provided that a permit of approval is not required for a program that is devoted entirely to religion or theology or a program offered by an institution operating under the authority of the Private College Act, the Academic Degree Act, or the Board of Higher Education Act.” 105 ILCS 426/20.

The PBVSA defines “private business and vocational school” as: “an educational institution privately owned or operated by a person, partnership, corporation, or other entity offering courses of instruction for which tuition is charged, whether such courses of instruction are offered on site, through correspondence, by distance education, or by other methods, to prepare individuals to do any of the following: (1) To follow a trade or artistic occupation.

(2) To pursue a manual, mechanical, technical, industrial, business, commercial, office, personal service (other than nursing), or other non-professional occupation.

(3) To follow a profession, if the profession is not subject to licensing or registration under any existing State statute requiring the licensing or registration of persons practicing such profession or if the school is not subject to the regulation of the agency with such licensing or registration authority.

(4) To improve, enhance, or add to the skills and abilities of the individual relative to occupational responsibilities or career opportunities.”

105 ILCS 426/15.

The PBVSA differs from the PCA and the ADA in that it explicitly makes an exemption for religious schools: Section 15- ““Program of study” as used in this definition means any academic program beyond the secondary school level, except for a program that is devoted entirely to religion or theology.”

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Section 20- “. . . a permit of approval is not required for a program that is devoted entirely to religion or theology . . . .”

The exemption found in the PBVSA, however, does not extend the exemption to the ADA or PCA. Plaintiffs also claim that the “devoted entirely to religion or theology” language in the PBVSA is overly restrictive as it relates to subjects that a government official may view as “secular” but which incorporate significant religious or faith based instruction and are part of a comprehensive program to equip students to integrate their religion or faith into their life, career, or work. Supp.

App., p. 16.

Like the other statutes, the PBVSA imposes penalties for violations of the act including, but not limited to, requiring schools to cease and desist operations, imposition of misdemeanors and felonies, and actions by the Illinois Attorney General. 105 ILCS 426/85.

II.

The State’s Actions with Respect to Specific Colleges A. Providence Baptist College Providence Baptist College, (“PBC”), was founded in 1998 as an educational

ministry of the Northwest Bible Church. Supp. App., p. 27. On September 21, 2009, PBC received a letter from the IBHE informing it that it had neither “Operating Authority” nor “Degree-Granting Authority” and that it was in violation of the PCA and the ADA. Id. at 34. As a result, the IBHE threatened to refer the matter to the Consumer Fraud Section of the Office of the Illinois Attorney General. Id. On October 6, 2009, the college responded by showing the IBHE the exemption it received under the PBVSA eight years prior. Id. at 37-39.

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On March 11, 2014, in response to a renewed application for exemption under the PBVSA, the IBHE informed the college that it was no longer eligible for the exemption. Id. at 41. The IBHE claimed that the college was no longer “devoted entirely to the teaching of religion or theology.” Id. The IBHE told the college that it was subject to the PBVSA and the administrative regulations and would have to submit a series of applications and permits for approval. Id. PBC responded by email on March 18, 2014, informing the IBHE that it had been exempt since 2001 and that all of the college’s programs were religious in nature and designed for Independent Baptist ministries. Id. at 43.

On May 1, 2014, the college sent a follow-up letter to the IBHE again highlighting its solely religious programs and asked the IBHE to renew its exemption under the PBVSA. Id. at 45-46. The IBHE never responded. Id. at 30.

B. Dayspring Bible College and Seminary Dayspring Bible College and Seminary (“DBCS”) was founded in 1982 as an educational ministry of the Quentin Road Bible Church, now Quentin Road Bible Baptist Church. Supp. App., p. 49. Like the PBC, DBCS offers its students solely religious programs. Id. On March 31, 1992, the college received a letter from the IBHE informing it that if it no longer granted degrees, and limited its diploma and certificate programs to those “which are devoted entirely to religion or theology,” it would not have to seek approval from the IBHE. Id. at 57.

On June 12, 2013, however, the IBHE sent the college a letter informing it that it did not have “Operating Authority” or “Degree-Granting-Authority” and

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threatened to refer the matter to Consumer Fraud Section of the Office of the Illinois Attorney General. Id. at 59-60. On August 26, 2013, the IBHE again sent the college a letter, expressing concern that the college began promoting degree programs. Id. at 62. The IBHE informed the college that it may continue operating so long as it did not grant degrees, awarded certificates and diplomas in religion or theology only, removed all references to degrees in marketing material, and informed students that its programs were not IBHE-recognized. Id. 62-63.

On August 29, 2013, the IBHE sent a follow-up letter seemingly backtracking from its previous assertions. Id. at 65. The IBHE informed the college that it had to comply with the PCA, ADA, and PBVSA and that the conditions it specified in the August 26th letter were “not intended to be an exhaustive, exclusive representation of requirements.” Id. The IBHE stated that the college had to become familiar with all relevant statutes and administrative code provisions and comply accordingly. Id. C. United Faith Christian Institute and Bible College The United Faith Christian Institute and Bible College (“UFCIBC) was founded in 2000 as an educational ministry of the United Faith Missionary Baptist Church.

Supp. App., p. 70. Like the other colleges, UFCIBC offers only religious educational programs. Id. On March 19, 2008, the IBHE sent the college a letter informing it that it was operating and offering degrees without approval. Id. at 76. The IBHE once again threatened to refer the matter to the Consumer Fraud Section of the Illinois Attorney General. Id.

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On April 24, 2008, the college informed the IBHE that it would only conduct coursework in its certificate program and sought advice on compliance issues regarding its relationship with another college called Aspen Christian College. Id. at 78. On February 28, 2013, the college submitted a letter to Dr. Christopher Koch, Superintendent of Education for Illinois, seeking clarification and instruction in regards to its religious programs. Id. at 80. The college sent follow-up emails on April 2, 2013 and May 21, 2013, but a response was never received. Id. at 82-83.

III.

The Plaintiffs’ Burdens as Pled.

The First Amended Complaint alleges that the State has created uncertainty

about the colleges’ status as post-secondary educational institutions. Supp. App., p.

17. The IBHE’s inconsistency and legislative jumble has also created uncertainty about how these colleges can communicate the State’s position to current and prospective students, faculty, staff, and donors. Id. The colleges allege that their existence is in jeopardy and maintain that their inability to grant “degrees” has restricted their ability to compete with State approved religious and secular schools.

Id. The colleges herein contend that they have lost countless students, financial support, and marketing appeal. Id. They not only wish to continue operating but assert a constitutional liberty, as religious colleges, to grant religious degrees in their religious programs to deserving students. Id. at 17-18, 23-24.

On March 28, 2016, the District Court dismissed Plaintiffs’ First Amended Complaint with prejudice under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

This appeal followed.

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SUMMARY OF ARGUMENT The State has neither the constitutional authority nor the competency to determine the standards for post-secondary religious education. See HEB Ministies, 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 a religious group to “shape its own faith and mission through its appointments.” Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694, 706 (2012).

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 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. “Bachelor’s Program in Reformed Theology,” or of the graduate, e.g. “Doctor of Divinity” or both, e.g.

“Master’s Degree in Urban Pastoral Ministry.” The State lacks the constitutional

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authority to take away from churches and religious colleges their constitutional freedom to award degrees.

Nevertheless, by force of the Academic Degree Act, the Private College Act, the Private Business and Vocational Schools Act of 2012, and the Illinois Administrative Code, the State has legislated to itself the purported constitutional authority to decide not only whether a religious college’s religious education is “adequate, suitable, and proper” but also the power to deny new religious colleges the ability to operate altogether as degree-granting institutions. 110 ILCS 1005/4.

These acts purport to vest the IBHE with the power to inspect and set standards for, inter alia, a bible college’s course content and faculty credentials. The State will not issue a “certificate of approval” to a new bible college 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.

It is therefore “illegal” for a college like Dayspring Bible College and Seminary, a ministry of Quentin Road Bible Church, to provide a would-be pastor, theologian, 15

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or missionary with anything signifying their satisfactory completion of a postsecondary 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 freedom of speech, and the freedom of all the individuals involved (students, teachers, deans, bishops, etc.) to associate for the advancement and expression of the beliefs, doctrine, and missions of their faith. As such, and for the reasons below, the District Court’s decision to dismiss the First Amended Complaint should be reversed.

STANDARD OF REVIEW The District Court dismissed the complaint under Rule 12(b)(6), so this Court’s review is de novo. Thulin v. Shopko Stores Operating Co., 771 F.3d 994, 997 (7th Cir. 2014). Because this appeal is from a dismissal for failure to state a claim, the Court must construe the complaint and supporting declarations in the light most favorable to the plaintiffs and draw all reasonable inferences in their favor. Meade v. Moraine Valley Cmty. Coll., 770 F.3d 680, 682 (7th Cir. 2014). The complaint is sufficient under Rule 12(b)(6) if it provides enough factual information to “state a claim to relief that is plausible on its face” and “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

ARGUMENT The Plaintiffs’ First Amended Complaint sufficiently stated a claim upon which the District Court could have declared that the State lacked the constitutional authority to set educational standards for religious post-secondary institutions

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which seek to educate and “disciple” 2 students in programs that equip them to integrate their religion or faith into their life, career, or work. Supp. App., p. 6.

Nevertheless, and even though the State’s Rule 12(b)6 arguments (Dkt. 25) failed to challenge or even analyze Plaintiffs’ as-applied federal claims and did not address or challenge the students’ claims at all, the District Court, on March 28, 2016, dismissed Plaintiffs’ complaint with prejudice under Rule 12(b)(6). This was reversible error for the following reasons.

I. Plaintiffs Sufficiently Pled a Claim under the Establishment Clause of the First Amendment to the United States Constitution.

At its root, the Establishment Clause prohibits laws “respecting an establishment of religion . . . .” U.S. Const. amend. I. In other words, “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). (emphasis added). The often cited “Lemon Test” provides that a statute “must have a secular legislative purpose; . . . its principal or primary effect must be one that neither advances nor inhibits religion, . . . [and], the statute must not foster ‘an excessive government entanglement with religion.’”

Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (internal citations omitted).

The Supreme Court has further explained that “it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them.” Gonzalez v. Roman Catholic Archbishop, “Disciple” as a verb means to educate in faith. Jesus’ Great Commission “go and make disciples of all nations” (Mt. 28:19) can be fairly paraphrased: “It is My command, and your duty, to make Gentiles everywhere to be well educated students and followers of all I have taught you.”

2

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280 U.S. 1, 16 (1929). In addition, the Supreme Court has held that, “[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.”

Watson v. Jones, 80 U.S. 679, 728-729 (1872). Likewise, the Seventh Circuit has held that “civil authorities have no say over matters of religious governance; and second, secular judges must defer to ecclesiastical authorities on questions properly within their domain.” Korte v. Sebelius, 735 F.3d 654, 678 (7th Cir. 2013). Plaintiffs pled and argued the following in support of their establishment clause claim: A. The State may not prefer one form of religious education over others.

Not all religious colleges are the same. As noted by the Texas Supreme Court, 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.

HEB, 235 S.W.3d at 645.

As set more fully in the First Amended Complaint, the colleges have doctrinal opposition to seeking State approval of their religious education. Supp. App., p. 16.

The colleges, for instance, believe that seeking State approval abdicates the Church’s duty and authority to guide the teaching of their colleges. Id. Similarly, they believe that acceding to State approval subordinates to the State the Church’s responsibility to God in deciding how to properly educate students in religious teaching and in deciding who should do the teaching. Id. Plaintiffs also pled that

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obtaining State approval and answering to the State dilutes the doctrine of their colleges and churches. Id. The Supreme Court of Texas addressed a similar controversy in HEB, 235 S.W.3d 627 (Tex. 2007). The state of Texas promulgated regulations which prohibited private post-secondary institutions from using “[certain terminology common to graduate education unless [they had] a certificate of authority from the Texas Higher Education Coordinating Board.” Id. at 631. Section 61.304 of the Texas statue stated that: “A person may not grant or award a degree on behalf of a private postsecondary educational institution unless the institution has been issued a certificate of authority to grant the degree by the board in accordance with the provisions of this subchapter. A person may not represent that credits earned or granted by that person or institution are applicable for credit toward a degree to be granted by some other person or institution except under conditions and in a manner specified and approved by the board. The board is empowered to specify and regulate the manner, condition, and language used by an institution or person or agents thereof in making known that the person or institution holds a certificate of authority and the interpretation of the significance of such certificate.” Id. at 632.

Like Illinois, the Texas statute defined “degree” broadly to encompass: “any title or designation, mark, abbreviation, appellation, or series of letters or words, including associate, bachelor’s, master’s, doctor’s, and their equivalents, which signifies, purports to, or is generally taken to signify satisfactory completion of the requirements of all or part of a program of study leading to an associate, bachelor’s, master’s, or doctor’s degree or its equivalent.” Id. HEB Ministries objected to obtaining authority from the state for doctrinal reasons, believing that the state had “no business meddling in biblical matters” and lamented that many Christian colleges were becoming more secular and less committed to the Gospel as a result of state interference. Id. at 638-639. Texas fined

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HEB Ministries $173,000, claiming that even its grant of certificates and diplomas in religious programs violated the state’s regulatory scheme. Id. at 639-640. The state also censured HEB Ministries for describing its programs as “Bachelor level” or “bachelor equivalent.” Id. at 638-640. HEB Ministries then filed suit claiming, inter alia, that section 61.304 violated the Establishment Clause. Id. at 640. The Texas Supreme Court agreed, holding that the section “clearly effectuate[s] a state preference for one model of religious education over others, a preference that the Establishment Clause simply does not permit.” Id. at 646.

Like Texas in the HEB case, Illinois has in place a regulatory scheme which impermissibly endorses some religious education and schools over others. Id. at 644. By limiting the use of “degree” terminology and the ability to operate as a “degree granting institution” to only those religious colleges 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 (“[G]overnment is to be entirely excluded from the area of religious instruction . . . .”).

Because all older religious colleges are exempt from all the State’s regulation and oversight, the regulatory scheme favors and “establishes” older religious colleges and disfavors new religious colleges. Concomitantly, the older 20

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“established” colleges and seminaries – largely Methodist, Catholic, Presbyterian, Lutheran, Jewish – are not required to get state approval but the newer, minority, or faster growing groups, such as Hispanic, Pentecostal, African-American (i.e.

Plaintiff United Faith Christian Institute and Bible College), or Muslim, must surmount the sometimes significant obstacles of state approval.

The District Court erred in finding that “[t]he statutes here neither advance nor inhibit religion.” Short App., p. 11. In fact, the statutes at issue both advance and inhibit different types of religion and religious teaching. A religious college which does not have doctrinal opposition to State oversight receives the State’s blessing as the State bestows upon it its “approval.” Religious colleges which are doctrinally opposed to State interference in religious education, like the Plaintiffs here, do not receive the State’s blessing. (“The religious school that chooses to educate in the manner of secular schools may use education terminology with the State’s approval.

Other religious schools cannot.” HEB, 235 S.W.3d at 644). A religious college’s position on State interference is often determined by the doctrinal position of its founding church and denomination. Some denominations, like the Anabaptists, advocate for stricter separation of church and state than other denominations.

Joireman, F. Sandra, “Anabaptism and the State: An Uneasy Coexistence”, University of Richmond (2009) (detailing Anabaptist tradition and beliefs regarding the State). By giving its approval only to religious colleges that do not object to State interference, the State violates the “clearest command of the Establishment

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Clause” which “is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).

Moreover, some colleges receive the coveted blessing not for any educational superiority, but simply because they arrived on the scene first and are now “grandfathered.” There are no doubt dozens of colleges which are exempt from state oversight under the ADA and the PCA because they were in operation prior to August 14, 1961 and July 17, 1945, respectively.

Not only is the District Court’s statement that “the issuing of ‘degrees’ as opposed to some other articulation of student attainment is not a mandate of religious doctrine” incorrect, it entirely misses the point. Short App., p. 11. It ignores the historical fact that religious institutions developed the first degree granting institutions in the world (Oxford, Sorbonne, Bologna) and in the United States (Harvard, Yale, and Princeton). It also overlooks the fact that religious teaching, discipleship, and speech is a religious mandate for religious colleges.

Without the ability to describe student achievement, religious colleges are severely inhibited from pursuing their mission and are placed at a serious disadvantage in relation to State approved religious colleges. The District Court’s conclusory assertion that the State has a “state interest and secular purpose” (Short App., p.

11) does not change the fact that, as the Supreme Court of Texas put it, “setting standards for a religious education is a religious exercise for which the State lacks not only authority but competence, and those deficits are not erased simply because

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the State concurrently undertakes to do what it is able to do- set standards for secular education programs.” HEB, 235 S.W. 3d at 643.

The District Court also erred by holding that the statutes do not excessively entangle the State in religious matters. By expressing its approval of some types of religious education while signaling its disapproval of other types, the State not only advances or inhibits religion, it also excessively entangles itself in religious matters. For example, if the King James Bible College founded in 1930 can grant degrees in Biblical Theology while the Rhema Bible College founded in 1980 cannot, does not Illinois communicate to the public that a graduate of the former school has a superior education? As in HEB, “[i]t is this expression of approval or lack of approval of religious instruction that entangles the State in religion.” Id. at 647. (“The inquiry into the recipient's religious views required by a focus on whether a school is pervasively sectarian is not only unnecessary but also offensive. It is well established, in numerous other contexts, that courts should refrain from trolling through a person's or institution's religious beliefs. Mitchell v. Helms, 530 U.S. 793, 828 (2000)). Moreover, as stated more fully in the section below, the State excessively entangles itself with religious matters when it reserves for itself the power to set standards and thereby exercise veto power over who may teach at religious colleges and what they must teach.

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 23

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mission” is absolute and paramount under the First Amendment. (emphasis added) 132 S. Ct. at 710. It is the exclusive 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 impermissibly establishes standards for post-secondary religious education to which the Plaintiffs must adhere if they wish to operate a degree granting institution and recognize student attainment. In order to obtain a “certificate of approval” from the State, 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 colleges must hire faculty that meet the State’s standards, and in some 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. 110 ILCS 1005/4.

The Illinois Administrative Code (“IAC”), 23 Ill. Adm. Code § 1030(a)(4)(A) et seq., specifically requires that:

and

“[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.” “[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 24

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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 Evangelical Lutheran 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 in religious matters in violation of the Establishment Clause. In fact, the State violates both Religion Clauses 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.

In addition, the IAC provides that in order to obtain a “certificate of approval” a bible college must establish to the State’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). (emphasis added).

But again, the State lacks both the constitutional authority and practical competency to establish any standards by which to judge whether a religious course at a bible college is “reasonable and adequate for achieving the stated degree objectives.” Id. For example, the stated objective and mission of Providence Baptist College, a ministry of Northwest Bible Church, is “to provide affordable education that trains full time workers for Independent Baptist church ministry.” Supp. App., p. 27.

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Unless the State administration en masse goes “down in the river to pray” 3 it cannot competently determine whether the courses offered by Providence Baptist 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, 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.

In dismissing the First Amended Complaint at the pleading stage, the District Court wrongly relied on pre-Hosanna-Tabor school cases which are at odds with Hosanna-Tabor’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 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.

The District Court wrongly held that Hosanna-Tabor is inapplicable because “the statutes at issue here do not require a church to retain or discharge any religious personnel.” Short App., p. 11. As in Hosanna-Tabor, the religious schools here are ministries of churches; they were founded by churches and their churches exercise authority over them. Supp. App., p. 27, 49, 70. The religious faculty members of these religious colleges are “ministers” just like any teacher at the Hosanna Tabor A phrase made popular by African-American spirituals and Christian folk music which describes immersion in a river as a public profession of one’s faith in the cleansing power of Jesus’ blood shed on the cross for the sins of the world.

3

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Evangelical Lutheran School. By specifying what type of teachers the State approves of and disapproves of, the State is requiring colleges that want to operate and grant degrees to retain or fire certain teachers in order to satisfy the State’s standards. Who will teach the faith is a question of internal governance and church control, something Hosanna-Tabor prohibits the State from interfering with altogether.

The District Court’s attempt to distinguish HEB also falls short. That the dispute in Texas revolved around “certificates” and “diplomas” does not alter the Texas Supreme Court’s Establishment Clause analysis or its applicability to this case. Not only did the District Court simply choose not to wrestle with the HEB court’s analysis, it failed to provide its own analysis. The District Court does not explain, for example, how allowing some religious colleges to grant degrees while others only certificates 4 resolves the constitutional violations of State preference of religious teaching and entanglement in religious matters.

II. Plaintiffs 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, synergize to protect religious

Despite some letters from IBHE administrators to the contrary, the broad definition of “degree” found within the statutes prohibits the Illinois bible colleges from granting either certificates or diplomas.

4

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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.

The Supreme Court’s holding in Employment Division v. Smith, 494 U.S. 872 (1990), (cited by the District Court at Short App., p. 13-15), cannot be relied upon to justify the State’s ability to interfere with and set the standards for religious postsecondary education. Such 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 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. Michael W. McConnell, Reflections on Hosanna-Tabor, 35 Harv.

J.L. & Pub. Pol'y 822 (2012 )(Noting the critical distinction the Supreme Court drew between its decisions in Hosanna-Tabor and Smith). 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. Smith., 494 U.S. at 882.

In fact, even under Smith, the State’s regulation of post-secondary religious education violates the Free Exercise Clause. Under Smith, the State argued that it did not violate the First Amendment because the statutes in question do not single out religious colleges but apply “across the board to all institutions seeking to issue degrees” and are in that sense “neutral laws of general applicability.” Dkt. 25, p. 16.

The statutes in question, however, do not apply across the board because all postsecondary institutions operating before July 17, 1945 or August 14, 1961 are

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grandfathered and not required to comply with the statutes. But even if the statutes are neutral and generally applicable, the Supreme Court later held Church of Lukumi Babalu Aye v. City of Hialeah, that neutral and generally applicable laws are still 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 statutes fall under both exceptions.

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-by-case inquiries are routinely made, such that there is an ‘individualized governmental assessment of the reasons for the relevant conduct’ that ‘invite[s] considerations of the particular circumstances’ involved in the particular case.” Axson-Flynn v. Johnson, 356 F.3d 1277, 1297 (10th Cir. 2004)(quoting Smith, 494 U.S. at 884). 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

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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 explicitly provides that the State may make individualized assessments when it examines whether a bible college, for example, has adequate faculty and curricula. The IAC provides that the State can individually assess: a. The caliber and content of each course or program of instruction, training, or study shall be reasonable and adequate…. 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 generalized and discretionary criteria empower state officials to use their authority to evaluate the content of every course and program offered by a bible college and to approve and disapprove 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

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whether the course content and faculty are fit to fulfill the biblically driven mission of a bible college.

Second, Plaintiffs have a “hybrid rights claim” 5 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, even if this Court finds the State’s postsecondary education regulatory scheme to be neutral and generally applicable, the State must show that its regulation of the bible colleges survives “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 Sufficiently Pled a Claim under the Free Speech Clause of the First Amendment to the United States Constitution.

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 beyond the secondary school level is foreclosed. Indeed, it is difficult to imagine any way to communicate student achievement without infringing on the State’s claimed monopoly on letters, words, or symbols in this context.

A hybrid rights claim is one where free exercise and any other protected liberty are burdened by government. Employment Div. v. Smith, 494 U.S. 872, 881 (1990).

5

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More to the point, by forbidding the colleges from issuing “Bachelor’s,” “Master’s,” or “Doctorate” degrees, the State directly restricts and imposes a prior restraint on the colleges’ ability to describe the nature of their curriculum. For example, a religious college with a four-year academic program and a rigorous curriculum is prohibited from conferring upon its achieving students “Bachelor’s” degrees unless it first disregards its religious principles and submits to State intervention of its religious teachings. This is true even if its religious program was identical with that of a State approved school. Furthermore, by seeking to regulate everything from the “caliber and content” of the colleges’ courses, to determining who is or is not qualified to teach at the colleges, the Illinois Administrative Code also restricts the colleges’ speech activities because religious colleges must tailor their courses, and hire the teachers, which would most improve their chances of being approved.

The Supreme Court’s recent decision in Reed v. Town of 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 may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” 135 S. Ct. 2218, 2226 (2015). citing R. A. V. v. St. Paul, 505 U. S. 377, 395 (1992). 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.

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Here, the State is regulating what religious post-secondary colleges can and cannot say about their students’ achievements. On its face, the Academic Degree Act prohibits religious colleges 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 “content-based” because it draws a “distinction based on the message a speaker conveys.” Reed, 135 S. Ct. at 2227. The message religious 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 6 or purports to signify” that message.

Like the content-based sign law that did not survive strict scrutiny in Reed, or the panhandling ordinance which did not survive strict scrutiny in Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015), the prohibition in 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 the colleges from using letters, words, or symbols in general, for that would be absurd. Rather the State is only prohibiting colleges from using letters, words, or symbols if they convey the particular idea that the student has satisfactorily completed an organized

“Signify” is a verb that means “to have or convey a particular idea.” Roget’s II, The New Thesaurus.

6

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academic program of religious study beyond the secondary school level. Such a restriction is 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, contentneutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” Reed, 135 S. Ct. at 2227, 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).

Reed, 135 S. Ct. at 2229.

Here, the regulatory scheme is even more susceptible to the suppression of disfavored speech because the State claims the exclusive authority to determine which colleges 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 religious 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 State has the power to approve some curricula, and those who teach it, while disapproving others based on the determination of select state officials. In particular here, the State is authorized to determine the quality and favorability of religious post-secondary education 34

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programs and to disable those that do not fit the State’s preferences by controlling the words employed to signify the students’ completion of those religious programs.

The regulatory scheme here profoundly lends itself to the vice of content-based discrimination.

The District Court did not dispute the fact that the statutes here are contentbased regulations. Instead of analyzing Plaintiffs’ free speech claim under Reed, however, the District Court simply stated that “[t]he statutes and regulations here do not differentiate between subject matter in the same way” and proceeded to dismiss the claim under pre-Reed cases. Short App., p. 16. The District Court, for example, cited to Association of Christian Schools Int’l v. Stearn, 679 F. Supp. 2d 1083 (C.D. Cal. 2008), a case which upheld a regulation allowing the University of California to approve high school courses to determine student eligibility to its school system. The University, however, did not seek to determine the qualifications that the Christian school teachers had to have nor did it seek to regulate how the schools recognized their students’ achievements. Id. at 1088-90.

The District Court also wrongly relied on Inst. for Creation for Research Graduate Sch. v. Tex. Higher Educ. Coordinating Bd., No. A-09-CA-382-SS, 2010 U.S. Dist. LEXIS 60699 (W.D. Tex. June 18, 2010), which held that an Education Board was within its rights to review and reject the plaintiff’s Master of Science degree in Science Education “from a Biblical scientific creationist viewpoint.” Id. at *2. But that court did not rule that the school could not grant a degree, it simply did

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not believe that Creationism qualified as science. The court affirmed the school’s right to grant religious degrees stating: “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 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.” (emphasis added).

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

By relying on nonbinding pre-Reed cases, which are distinguishable from the facts of this case, the District Court failed to give proper weight to Plaintiffs’ free speech claim.

The District Court also suggested that use of educational degrees is commercial speech and not subject to strict scrutiny. But again, the cases relied on are pre-Reed and distinguishable for the facts in this case. For example, in Ibanez v. Florida Dept. of Bus. & Prof. Regulation, the Supreme Court 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 inapposite to a religious designation such as a “Bachelor’s degree in Reformed Theology” that might be obtained from a religious college 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

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content of religious educational programs and the competence of its faculty members to impart an education with religious objectives in mind. 7 Similarly, Nova University v. Educational Institution Licensure Commission, a case which held that “degree conferral is business conduct. . . .” 483 A.2d 1172, 1181 (D.C 1984), is also distinguishable. In Nova, the university was not religious and the case addressed the granting of doctorates in Public Administration. Id. at 1172.

These cases are both 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 subject to greater scrutiny. Furthermore, as Reed clearly stated, “[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.” Reed, 135 S. Ct. at 2227.

The State has not claimed, nor can it show, that the curriculum offered by these bible colleges and the degrees they wish to grant are dishonest, false, or otherwise misleading. Nor does the State have a substantial interest in restricting the speech.

By making exceptions for other religious colleges with privileged grandfathered status, the State cannot claim to have a substantial interest in restricting speech in this case. Even if the State did have a substantial interest in restricting free speech, the regulations are more extensive than necessary to serve its interests because the Furthermore, nothing in Plaintiffs’ requested relief infringes on the Illinois Attorney General’s ability to enjoin or prosecute fraudulent educational organizations, religious or secular.

7

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State’s broad definition of “degree” prohibits the colleges from marking student achievement in any conceivable way. 8 IV.

Plaintiffs 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 religious doctrine… is unquestioned.” Watson, 80 U.S. at 728-729. (emphasis added). The religious colleges here are all voluntary associations which have been organized to assist in the expression and dissemination of religious doctrine.

Students who attend these colleges 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 college, 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.” HosannaTabor, 132 S.Ct. at 706. The State’s regulation of post-secondary religious education imposes penalties and withholds benefits from individuals because of their membership in a group seeking autonomy. The bible colleges in this case do not want the State to interfere in their internal organization or affairs. The regulations in question give the State the ability to examine the colleges’ internal organization and affairs and authorize it to examine their funding, faculty, and course content. If A less extensive way the State could serve its interests is to simply prohibit a college from claiming it has been approved by the State.

8

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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.”

The District Court wrongly asserted that the regulations “do not mandate that plaintiffs employ particular individuals nor do they impede plaintiffs’ religious expression.” Short App., p. 18. As explained earlier, the State’s regulations specifically require colleges, in order to operate and grant degrees, to hire a certain class of teachers, namely those with the academic backgrounds and degrees the State approves. The State impedes religious expression because it requires certain religious teachers to be fired in order for some colleges to receive a certificate of approval. The State further impedes religious expression when it reserves the power to review religious course content and prohibit colleges from expressing student attainment in religious degrees. This inhibits religious colleges’ ability to freely associate, something that the United States Constitution simply does not permit.

V.

The State Does Not have a Compelling Government Interest to Infringe upon the Fundamental Rights of Illinois Bible Colleges and Their Students.

The District Court wrongly concluded that there are no fundamental rights

implicated by the statutes at issue. Short App., p. 18-19. The religious exercise and free speech rights of the churches and colleges involved in this case are fundamental. (“The fundamental concept of liberty embodied in that [Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 215 (1963)). By restricting the ability of 39

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bible colleges to operate and grant degrees, and by entangling itself in religious matters, the State is inhibiting their ability to teach, speak, disciple, and associate according to their religious tenets. As such, the State’s restrictions on these colleges and their operations must pass strict scrutiny. “[C]lassifications affecting fundamental rights . . . are given the most exacting scrutiny.” Clark v. Jeter, 486 U.S. 456, 461 (1988)(internal citations omitted).

The fact that the State exempted all existing colleges under the ADA and PCA not only defeats any claim to a “compelling government interest,” but it also has the effect of misleading students, parents, and employers into thinking that all the older colleges and all their degree programs are “State approved” or “legitimate”— when, in fact, an older college may be significantly inferior to one of the plaintiff colleges.

As pled, the State’s disparate treatment of similarly situated colleges (save for the date of their founding) not only belies any claim to a compelling governmental interest, but also violates the Equal Protection Clause, U.S. Const. amend XIV, § 1; City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). As set forth above, the Academic Degree Act and Private College Act carve out exceptions for certain religious colleges and deny those exceptions to Illinois bible colleges—even though they are similarly situated as other private post-secondary religious colleges. In alleging the disparate treatment of grandfathered religious postsecondary institutions with later founded, similarly situated institutions, Plaintiffs

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sufficiently stated a cause of action under the Equal Protection Clause which should not have been dismissed under Rule 12(b)(6).

Even if rational basis is applied, the District Court’s citation of cases involving “grandfather clauses” should not be read to suggest that every grandfather clause is rational so as to defeat an Equal Protection claim. The leading case cited by the State involved a grandfather clause in a New Orleans ordinance that prohibited pushcart food sales in the City’s French Quarter. New Orleans v. Dukes, 427 U.S. 297, 298 (1976). The ordinance grandfathered sellers who had been in continuous operation for at least eight years. Id. The Supreme Court upheld the grandfather clause because the: city could reasonably decide that newer businesses were less likely to have built up substantial reliance interests in continued operation in the Vieux Carre and that the two vendors who qualified under the "grandfather clause" -- both of whom had operated in the area for over 20 years rather than only eight -- had themselves become part of the distinctive character and charm that distinguishes the Vieux Carre. We cannot say that these judgments so lack rationality that they constitute a constitutionally impermissible denial of equal protection.

Id. at 305.

The Supreme Court did not state that grandfather clauses are per se rational, but rather analyzed the defendant’s judgments to determine whether they were rational. Here, the District Court’s decision lacked any such analysis and was dismissed prematurely. Moreover, if the State is as concerned with the existence of diploma mills as it claims, then there is no rational justification to exempt a large number of colleges and universities from its regulations.

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Plaintiffs’ Right to a Broader Exemption from the Private Business and Vocational School Act. As demonstrated above, a religious college’s constitutional right to operate and

grant degrees extends to the teaching of indisputably “religious” subjects like Urban Ministry or Biblical Studies. This right, however, may also extend to subjects the State may contend are not “religious.” As explained in the First Amended Complaint, the Plaintiff colleges educate and disciple students in programs that specifically equip them to integrate their religion or faith into their life, career, or work. Supp. App., p. 8. The students enroll in these colleges in order to train themselves for ministry work, including spreading the Gospel. Id. at 9. For these students, every course is taught from a religious perspective which incorporates significant faith based instruction as a part of a comprehensive program to prepare them for a religious calling.

Because 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.

VII.

The Plaintiff Students’ Constitutional Rights.

The regulatory scheme here not only implicates religious colleges but individual students, like Plaintiff Leigh Pietsch, and others students who seek, or may seek, recognition for completing an organized academic program of postsecondary religious education from Illinois bible colleges.

The Supreme Court has recognized that majoring in a religious subject 42

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like “devotional theology is akin to a religious calling as well as an academic pursuit.” Locke, 540 U.S. at 721. Therefore, the State not only infringes on the First Amendment rights of religious colleges but also their students. Students who are called to and complete a program of study at a bible college should not be denied the opportunities and recognitions they have earned on account of the State’s view of the “legitimacy” of their religious education.

Moreover, by prohibiting students from obtaining degrees from religious postsecondary educational institutions which the State has not “approved,” or which are not “grandfathered,” the State is inhibiting their ability to earn a living by making their education less valuable to the community. The 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).

Neither the State, nor the District Court, addressed the rights of students like Leigh Pietsch and others seeking religious education in Illinois. Their Free Exercise, Free Speech, Freedom of Association, and Equal Protection rights are just as valid as those of the colleges. Because the District Court did not address the students’ rights, this Court has yet another reason to reverse the summary dismissal.

CONCLUSION WHEREFORE, Plaintiffs request that this Court reverse the decision of the District Court, reinstate the First Amended Complaint, and:

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A. Rule that the Plaintiff colleges may establish and operate religious postsecondary degree granting educational institutions without obtaining State approval; B. Rule that the challenged provisions of the Academic Degree Act, the Private Colleges Act, the Private Business and Vocational Schools Act of 2012, and the Illinois Administrative Code, as applied to the Plaintiff colleges, violate the: •

Establishment Clause, Free Exercise Clause, Free Speech Clause and the right to Freedom of Association protected by the First Amendment to the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

C. Rule that the Plaintiff colleges are allowed to operate and can grant the same types of degrees that “grandfathered” colleges grant so long as the education incorporates significant religious or faith based instruction and is part of a comprehensive program to equip the student to integrate his or her religion or faith into his or her life, career, or work; D. Rule that the Defendant, in her official capacity, and her successors are enjoined from requiring State approval from the IBHE for any Plaintiff college or any member of the Illinoi Bible College Association; E.

Rule that the Free Speech Clause of the United States Constitution allows

religious post-secondary educational institutions to operate as colleges and to recognize student achievement by granting degrees as defined in the Academic Degree Act and the Private Colleges Act;

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F. Rule that the degrees which this Court may permit the Plaintiff colleges to award can also be awarded retroactively to the prior graduating classes; G. Rule that the Plaintiffs are prevailing parties and award attorney fees pursuant to 42 U.S.C. §1988(b); and H. Grant any other relief this Court deems just.

Dated: June 16, 2016

Respectfully Submitted, By: /s/ John W. Mauck__________ Counsel for Plaintiffs-Appellants

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

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

Counsel for Plaintiffs-Appellants

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No. 16-1754 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7)(B) The undersigned counsel of record for the Plaintiffs-Appellants Illinois Bible Colleges Association, et al., hereby certify that this brief conforms to the rules contained in F.R.A.P. Rule 32(a)(7)(B) for a brief produced with a proportionally spaced font. The length of this brief as counted by the word-processing system used to prepare this brief is 11,585 words.

Dated: June 16, 2016 By: /s/ John W. Mauck__________ Counsel for Plaintiffs-Appellants John W. Mauck Noel W. Sterett Mauck & Baker, LLC One N. LaSalle Street, Suite 600 Chicago, IL 60602 P: (312) 726-1243 F: (866) 619–8661

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

Counsel for Plaintiffs-Appellants

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No. 16-1754 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 30(d) The undersigned counsel of record for the Plaintiffs-Appellants Illinois Bible Colleges Association, et al., hereby certify that the materials required by Circuit rule 30(a) are included in the Short Appendix accompanying the brief, and that the items required by Circuit Rule 30(b) are included in the Appellants’ Supplemental Appendix.

Dated: June 16, 2016 By: /s/ John W. Mauck Counsel for Plaintiffs-Appellants John W. Mauck Noel W. Sterett Mauck & Baker, LLC One N. LaSalle Street, Suite 600 Chicago, IL 60602 P: (312) 726-1243 F: (866) 619–8661

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

Counsel for Plaintiffs-Appellants

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CERTIFICATE OF SERVICE The undersigned, an attorney, certifies that on June 16, 2016, he caused the Plaintiffs-Appellants’ Brief and Short Appendix to be filed with the Seventh Circuit Court of Appeals electronic filing system, which electronically served notification and copies of such filing upon all attorneys who have appeared and are of record.

By: /s/ John W. Mauck Counsel for Plaintiffs-Appellants John W. Mauck Noel W. Sterett Mauck & Baker, LLC One N. LaSalle Street, Suite 600 Chicago, IL 60602 P: (312) 726-1243 F: (866) 619–8661

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

Counsel for Plaintiffs-Appellants

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No. 16-1754 ______________________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

______________________________________________________________________________ Illinois Bible Colleges Association, et. al, Plaintiffs-Appellants, v.

Lindsay K. 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 No. 15-cv-444, Honorable Judge Sharon J. Coleman presiding. _________________________________________________ SHORT APPENDIX OF THE PLAINTIFFS-APPELLANTS ILLINOIS BIBLE COLLEGES ASSOCIATION, ET AL. _________________________________________________ John W. Mauck Noel W. Sterett Mauck & Baker, LLC One N. LaSalle Street, Suite 600 Chicago, IL 60602 P: (312) 726-1243 F: (866) 619–8661

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

Counsel for Plaintiffs-Appellants

Oral Argument Requested

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SHORT APPENDIX Table of Contents Page Appendix 1 The Minute Entry of March 28, 2016 (Dkt. 37) ................................................. 3 Appendix 2 The Memorandum Opinion and Order of March 28, 2016 (Dkt. 38) ................ 5 Appendix 3 Final Judgment of Record dated March 28, 2016 (Dkt. 39) ........................... 20

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No. 16-1754 ______________________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

______________________________________________________________________________ Illinois Bible Colleges Association, et. al, Plaintiffs-Appellants, v.

Lindsay K. 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 No. 15-cv-444, Honorable Judge Sharon J. Coleman presiding. ______________________________________________________________________________ SHORT APPENDIX 1 ______________________________________________________________________________

Short Appendix 1

003

Case: 1:15-cv-00444 Document #: 37 Filed: 03/28/16 Page 1 of 1 PageID #:347 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77

UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 6,1 Eastern Division

Illinois Bible Colleges Association, et al.

Plaintiff, v.

Case No.: 1:15−cv−00444 Honorable Sharon Johnson Coleman

Lindsay Anderson Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Monday, March 28, 2016: MINUTE entry before the Honorable Sharon Johnson Coleman: Defendant moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons stated herein, this Court grants defendants Motion to Dismiss [24] and dismisses the case in its entirety. Enter Memorandum Opinion and Order. Civil case terminated. Mailed notice(rth, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.

Short Appendix 1

004

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No. 16-1754 ______________________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

______________________________________________________________________________ Illinois Bible Colleges Association, et. al, Plaintiffs-Appellants, v.

Lindsay K. 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 No. 15-cv-444, Honorable Judge Sharon J. Coleman presiding. ______________________________________________________________________________ SHORT APPENDIX 2 ______________________________________________________________________________

Short Appendix 2

005

Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 1 of 14 PageID #:348 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ILLINOIS BIBLE COLLEGES ASSOCIATION, et al., Plaintiffs, v.

LINDSAY K. ANDERSON, Chair of the Illinois Board of Higher Education, Defendant.

) ) ) ) ) ) ) ) ) ) )

Case No. 15 cv 444 Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER Plaintiffs filed a six-count First Amended Complaint against the Illinois Board of Higher Education, through its chairperson, alleging that the Private College Act, 110 ILCS 1005/0.01 et seq., the Academic Degree Act, 110 ILCS 1010/0.01 et seq., and the Private Business and Vocational Schools Act of 2012, 105 ILCS 426/1 et seq., violate the U.S. Constitution and the Illinois Religious Freedom Restoration Act, 775 ILCS 35/5 et seq.. Defendant moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons stated herein, the Court grants the motion and dismisses the complaint.

Background Plaintiffs are the Illinois Association of Bible Colleges, Providence Baptist College, Dayspring Bible College & Seminary, United Faith Christian Institute and Bible College, Civil Liberties for Urban Believers, and student Leigh Pietsch (collectively “the Bible Colleges”). The statutes plaintiffs challenge, the Private College Act, 110 ILCS 1005/0.01 et seq., the Academic Degree Act, 110 ILCS 1010/0.01 et seq., and the Private Business and Vocational Schools Act of 2012, 105 ILCS 426/1 et seq., regulate the operations of certain post-secondary and educational institutions. The Illinois Board of Higher Education administers these statutes. The particular 1

Short Appendix 2

006

Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 2 of 14 PageID #:349 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 provisions at issue impose certain regulatory requirements that must be satisfied in order for a postsecondary educational institution to issue degrees.

The Private College Act governs privately-operated colleges, junior colleges, and universities that offer degrees. To operate such an institution, the Private College Act requires a certificate of approval from the Illinois Board of Higher Education. 110 ILCS 1005/2. According to the Illinois Administrative Code, the Board of Higher Education may evaluate, among other things, “the caliber and content of each course or program of instruction,” the physical plant, the number of credit hours required for undergraduate and graduate degrees, the educational credentials of faculty and applicants, the institution’s finances, and the institution’s record-keeping. 23 Ill. Adm. Code 1030.30.

The statute defines a “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.

The Academic Degree Act defines degree the same way as the Private College Act. See 110 ILCS 1010/2(b). The Academic Degree Act also requires approval by the Board of Higher Education before an institution can be “degree granting.” Id. at §3. The Act defines a “degree granting institution” as: an educational facility maintained by any person, partnership, public or private corporation or public body and operating as a school, academy, institute, private junior college, college, university or entity of whatever kind which furnishes or offers to furnish instruction leading toward or prerequisite to an academic or professional degree beyond the secondary school level, and which requires that in order to obtain a degree the recipient thereof 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; however, this definition does not apply to Illinois public tax supported higher education institutions. 110 ILCS 1010/2(a).

2

Short Appendix 2

007

Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 3 of 14 PageID #:350 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 Both the Academic Degree Act and the Private College Act contain grandfather clauses, exempting institutions that have been in existence prior to certain dates. See 110 ILCS 1005/2; 110 ILCS 1010/4(a).

The Private Business and Vocational Schools Act of 2012 governs private business and vocational schools and requires approval from the Board of Higher Education. 105 ILCS 426/20.

Approved schools may issue “certificates” or “certificates of completion.” 105 ILCS 426/15. Before issuing a permit of approval, the Board of Higher Education evaluates schools subject to this act based: the qualifications of Governing Board Members, Owners, and Senior Administrators, faculty and staff; the quality of program delivery; the sufficiency of the institution’s finances; the accuracy, clarity, and appropriateness of the program’s promotional materials; the sufficiency of the facilities and equipment; the existence of fair and equitable refund policies; the use of appropriate and ethical admissions and recruitment practices; accreditation status; employment in the field of study; legally adequate enrollment agreements; and, clearly communicated tuition and fee charges. Additionally, the institution must explain any legal action against the institution, its owners, board members, etc.; and the school must provide prospective students with a catalog or brochure prior to enrollment. 23 Ill. Adm. Code 1095.40. Schools providing entirely religious or theological education are exempt from the provisions of this Act. 105 ILCS 426/30.

Plaintiffs raise the following allegations in their First Amended Complaint: that the challenged statutes violate the Establishment Clause because mandating approval by the Board of Higher Education to grant “degrees” results in excessive entanglement of government in religious activity (Count I); that the challenged statutes violate the Free Exercise Clause by infringing on plaintiffs’ religious liberty under both the U.S. Constitution and the Illinois Constitution (Count II); that the statutes and rules regulating the granting of degrees violate plaintiffs’ Freedom of Speech guaranteed by the U.S. Constitution and the Illinois Constitution (Count III); that the challenged 3

Short Appendix 2

008

Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 4 of 14 PageID #:351 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 statutes violate plaintiffs’ First Amendment right to freedom of association (Count IV); that the statutes violate the Illinois Religious Freedom Restoration Act, 775 ILCS 35/5 et seq. (Count V); and that the statutes violate the Equal Protection Clause by rendering Bible College students’ education less valuable to the community because their course of study is not approved by the Board of Higher Education and the “grandfather clauses” benefit some schools over others (Count VI).

Plaintiffs seek exemptions from the challenged statutes.

Legal Standard In order to survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain sufficient factual allegations to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8(a)(2) sets forth the minimum pleading requirements of “a short and plain statement of the claim showing that the pleader is entitled to relief….to give the defendant fair notice of what the …claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007)). When reviewing a motion to dismiss the court must accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff’s favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Pisciotta v. Old Nat. Bancorp, 449 F.3d 629, 633 (7th Cir. 2007).

Discussion Plaintiffs voluntarily dismiss, without prejudice, their state law claims. Thus, this Court will only consider their claims arising from the U.S. Constitution. Defendant asserts that plaintiffs are making a facial challenge to the statutes. However, as this Court reads the allegations it appears that the plaintiffs do not contend that the statutes at issue can never be applied constitutionally and 4

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Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 5 of 14 PageID #:352 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 therefore should not apply to any educational institution, but that the statutes are unconstitutional in their application to the Bible Colleges. See, e.g., Sabri v. United States, 541 U.S. 600, 604 (2004); see also Alex Kreit, Making Sense of Facial and As-Applied Challenges, 18 Wm. & Mary Bill Rts. J. 657 (2010) (Mar. 3, 2016), http://scholarship.law.wm.edu/wmborj/vol18/iss3/4. However, plaintiffs are incorrect in their assertion that defendants’ argument for dismissal is applicable only to a facial challenge to the statutes and their motion should be denied on that basis. This Court will consider each Count in turn.

1. Count I – Establishment Clause The First Amendment to the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion.” U.S. Const., Amend. 1. Defendant argues that plaintiffs cannot state a claim for a violation of the Establishment Clause because the laws at issue serve the valid secular purpose of insuring that educational institutions, their programs, faculty, and degree granting practices are legitimate based on an evaluation that does not implicate religion. Plaintiffs assert that the statutes mandate state approval to grant degrees and therefore subordinate the Church’s responsibility to God in deciding how to properly educate students in religious teaching and excessively entangle the state in religion by establishing the standards for post-secondary religious education and to recognize student attainment.

Courts have long applied the “Lemon test” to determine whether a statute violates the Establishment Clause, and defendant urges this Court to follow suit. Pursuant to Lemon, a statute violates the Establishment Clause if (1) it has no secular purpose, (2) its primary effect advances or inhibits religion, or (3) it fosters an excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S.

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Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 6 of 14 PageID #:353 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 602, 612-13 (1971). 1 The Lemon test remains operative in this Circuit. Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 849 (7th Cir. 2012), cert. denied, 134 S. Ct. 2283 (2014).

The statutes at issue here neither advance nor inhibit religion. Maintaining minimum educational standards in all schools constitutes a substantial state interest and secular purpose. See Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L. Ed. 1070 (1925); New Jersey State Bd. of Higher Educ. v. Shelton College, 448 A.2d 988, 996, 90 N.J. 470 (N.J. 1982). The issuing of “degrees” as opposed to some other articulation of student attainment is not a mandate of religious doctrine. Moreover, the regulatory scheme evaluates educational institutions on secular criteria against the institution’s own stated objectives and thus does not involve excessive entanglement. See 23 Ill. Adm. Code 1030.30(a)(1).

Plaintiffs contend that this Court should follow the Supreme Court’s ruling in Hosanna-Tabor v. Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al., 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012). Hosanna-Tabor, however, is not directly on point and does not articulate a bright line rule applicable in this situation. In that case, the Supreme Court allowed a “ministerial exception” to employment discrimination claims because the Establishment Clause prohibits governmental involvement in ecclesiastical decisions such as requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so. Id. at 706. The Court reasoned that “[s]uch action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Id. The case at bar is distinguishable in that the statutes at issue here do not require a church to retain or discharge any religious personnel. Instead, the statutes at issue here require faculty to have minimum credentials in

While lower courts continue to apply the Lemon test, see, e.g., Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 849 (7th Cir. 2012), cert. denied, 134 S. Ct. 2283 (2014), members of the Supreme Court have been questioning its continued application, though doing so without articulating a replacement. See, e.g., Van Orden v. Perry, 545 U.S. 677, 686 (2005); Utah Highway Patrol Ass'n v. Am. Atheists, Inc., 132 S. Ct. 12, 14 (2011) (Thomas, J., dissenting on denial of writ of certiorari) (noting that “five sitting Justices have questioned or decried the Lemon/endorsement test’s continued use”).

1

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Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 7 of 14 PageID #:354 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 order for the institution to issue degrees. Such an action does not interfere with the internal governance of the church.

Plaintiffs also rely on HEB Ministries, Inc. v. Texas Higher Education Coordinating Board et al., 235 S.W.3d 627, 50 Tex. Sup. J. 1094 (Tex. 2007), to oppose dismissal. In that case, HEB Ministries was fined for awarding “certificates” and “diplomas” in “Biblical Studies” the court found that the fines violated the Establishment Clause because HEB Ministries was “offering religious instruction and recognizing attainment with certificates clearly reflecting that such instruction is religious.” Id. at 649.

Significantly for this Court’s purposes, HEB Ministries did not complain of the statute’s restriction on the use of the word “degree” and thus the Texas court did not consider whether the restriction was permissible. Id. at 661. Here, plaintiffs are seeking complete exemption from the statutes so that they may confer “degrees,” which is an entirely different scenario than recognizing student attainment with certificates clearly reflecting that such instruction is religious. Indeed, plaintiffs attached to their First Amended Complaint a letter from the Board of Higher Education specifically stating that they may issue certificates and diplomas.

This case is more closely aligned with New Jersey State Bd. of Higher Educ. v. Shelton College, 448 A.2d 988, 996, 90 N.J. 470 (N.J. 1982), relied on by defendant. In Shelton College, the Supreme Court of New Jersey rejected an Establishment Clause challenge by a religious college whose power to confer baccalaureate degrees was revoked for noncompliance with the statutory requirements for conferring degrees. There, the court considered the constitutionality of a New Jersey statute similar to the one at issue here, mandating approval by the state prior to issuing degrees. Id. The statutes at issue in that case prohibited the granting of baccalaureate degrees by any institution that had not secured a license from the State Board of Higher Education. Id. at 932. The court found no Establishment Clause violation, noting that Shelton College had declined to participate in the licensing process, and thus “the allegation of excessive entanglement rests on speculation about the 7

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Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 8 of 14 PageID #:355 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 manner in which these statutes and regulations might be applied.” Id. at 998. The court observed that “one could imagine an unconstitutional application of this regulatory scheme,” but found no evidence of unconstitutional application on the facts before the court. Id. Here, like in Shelton College, the Bible Colleges have not sought approval under the statute, and their allegations of entanglement therefore rest on unfounded speculation. Accordingly, this Court grants defendant’s motion with respect to Count I. 2. Count II – Free Exercise Clause Defendant argues the statutes and regulations at issue do not violate the Free Exercise Clause because they are neutral and generally applicable and thus the statutory scheme is subject only to rational basis review. Plaintiffs assert that, even if the statutes and regulations are neutral and generally applicable on their face, strict scrutiny should apply because the statutes call for an individualized assessment of plaintiffs’ religious activity and they have alleged a hybrid rights claim.

Defendant counters that the two exceptions to rational basis review set forth in Employment Division v. Smith, 494 U.S. 872, 884 (1990), do not apply to raise the level of scrutiny.

No Free Exercise violation results where a burden on religious exercise is the incidental effect of a neutral, generally applicable, and otherwise valid regulation, in which case the regulation need not be justified by a compelling governmental interest. Smith, 494 U.S. at 885. The regulations at issue here are facially neutral and generally applicable since they apply with equal force to secular and religious institutions. They neither discriminate against some or all religious beliefs nor do they regulate or prohibit conduct “because it is undertaken for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993). The Supreme Court has determined that the requirement of general applicability is based on “[t]he principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief.” Id. at 543.

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Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 9 of 14 PageID #:356 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 In this case, the only educational institutions singled out in the statutes and regulations at issue are those schools exempt from regulation through the grandfather clauses and entirely religious institutions exempt under the Private Business and Vocational Schools Act of 2012. Thus, the statutes are neutral and generally applicable, and only subject to rational basis review.

Plaintiffs contend that the Supreme Court’s opinion in Hosanna-Tabor, discussed above, controls this Court’s analysis of the Free Exercise claim. This Court disagrees that Hosanna-Tabor provides the controlling analytical framework for the same reasons discussed above regarding the Establishment Clause. A “ministerial exception” is not mandated where the state is not dictating which individuals a religious entity must hire or retain. Because Hosanna-Tabor was an employment discrimination case under Title VII, the ultimate result of the litigation, if carried to its logical end, would have been a court dictating that a religious entity must rehire a particular individual. Clearly such an action would violate both the Establishment Clause and the Free Exercise Clause because a court would be mandating internal church governance by forcing the religious institution to employ an unwanted minister. See Hosanna-Tabor, 132 S. Ct. at 706. As the Court reasoned, “[t]he present case, in contrast [to Smith], concerns government interference with an internal church decision that affects the faith and mission of the church itself.” Id. at 707. Here, the statutes at issue do not interfere with an internal church decision affecting the faith or the mission of the church itself.

Instead, by setting a statewide standard for conferring a “degree,” the statutes and regulations incidentally affect one way in which a religious educational institution might elect to describe student achievement.

In Smith, the Supreme Court described two exceptions to rational basis review for neutral generally applicable laws: (1) “a hybrid rights claim,” where an individual or organization’s Free Exercise rights are burdened in addition to another constitutionally protected right such as freedom of expression or association; and (2) the statutes call for an individualized governmental assessment 9

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Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 10 of 14 PageID #:357 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 of the reasons for the relevant religious conduct. Smith, 494 U.S. at 881, 884. 2 Neither exception applies to the statutes and regulations at issue here.

This Court has already rejected plaintiffs’ Establishment Clause claim and, as set forth below, plaintiffs’ claims under freedom of association, expression, and equal protection are equally inadequate. “[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, et al. v. City of Chicago, 342 F.3d 752, 765 (7th Cir. 2003) (quoting Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 1999), and collecting cases).

The statutes and regulations at issue are not of the type of individualized assessment warranting heightened scrutiny. The evaluation criteria set forth in the statutes are secular and do not require inquiry into the reasons for religious practice. Instead, the criteria seek to determine the institution’s capability to carry out the education that it is purporting to provide based on its finances, transparency, and training. This Court finds that maintaining minimum educational standards for the conferring of degrees is a secular state interest of sufficient importance to pass rational basis review.

Accordingly, this Court grants defendant’s motion as to Count II. 3. Count III – Freedom of Speech Plaintiffs claim that the state is unconstitutionally restricting their ability to accurately describe the nature of the Bible Colleges’ curricula by regulating the use of the terms “Bachelor’s,” “Master’s,” or “Doctorate” degrees. Defendant argues that plaintiffs fail to state a claim for a violation of their Freedom of Speech because the use of the word “degree” is not religious speech activity. Defendant further contends that plaintiffs’ rights to teach, worship, and express religious ideas are unaffected by the statutes at issue.

Smith is relevant only for its analytical framework since it involved a criminal statute regulating the use of peyote, which is not factually instructive for the case at bar.

2

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Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 11 of 14 PageID #:358 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws “abridging the freedom of speech.” U.S. Const., Amend. 1.

Plaintiffs cite the Supreme Court’s recent decision in Reed v. Gilbert, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015), for the proposition that content-based speech is presumptively unconstitutional and subject to strict scrutiny. In Reed, the Supreme Court relied on strict scrutiny to strike down the defendant town’s Sign Code, which restricts and identifies categories of signs based on the type of information they convey. Id. In Reed, the Supreme Court reiterated that “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or the message expressed.” Id. at 2227. The Court in Reed reasoned that: “The Town’s Sign Code… singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter… That is a paradigmatic example of content-based discrimination.” Id. at 2230.

The statutes and regulations here do not differentiate between subject matter in the same way. This case is more closely aligned with the line of reasoning in United States v. American Library Ass’n, where the Supreme Court held that a heightened standard of scrutiny is inapplicable if the government is providing a public service that by its nature requires evaluations of, and distinctions based upon, the content of speech. 539 U.S. 194, 204-05, 123 S. Ct. 2297, 156 L. Ed. 2d 221 (2003).

That decision gave public libraries broad discretion to decide what material to provide to their patrons. Id. A California District Court applied this reasoning to the University of California admissions process of approving high school courses to determine student eligibility, finding the regulation constitutional because it was reasonably related to the government’s goal of providing the public service and is not the product of government animus. Association of Christian Schools Int’l v.

Stearns, 679 F. Supp. 2d 1083, 1098 (C.D. Cal. 2008).

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Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 12 of 14 PageID #:359 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 The Western District of Texas applied the same reasoning in Institute for Creation Research Graduate School v. Texas Higher Education Coordinating Board, 2010 WL 2522529 (W.D. Tex. June 18, 2010), which is closer to the case at bar. In that case, the plaintiff claimed that the Texas Higher Education Coordinating Board violated the Establishment Clause, Free Exercise Clause, and Free Speech Clause by determining that a proposed master of science degree program from a “Biblical scientific creationist viewpoint” could not be designated a “degree.” The Texas court rejected all of the claims, finding that “[t]he Board, in order to protect Texas citizens and ensure the reliability of degrees earned within the State’s boarders, is charged with reviewing the curricula of proposed degrees to be offered by institutions of higher education so that it may determine whether those degrees are substandard or fraudulent.” Id. at *13.

The use of the terms “bachelor’s,” “master’s,” or “doctorate” degree by themselves do not trigger strict scrutiny. Courts, including the Supreme Court, that have considered the use of educational terms similar to the ones at issue here have found them to be commercial speech subject to a lower standard of scrutiny. See Ibanez v. Florida Dept. of Bus. & Prof. Regulation, 512 U.S. 136, 142 (1994) (holding that the use of initials or a designation purporting to indicate educational credentials or professional licensure is a form of commercial speech); Nova University v. Educational Institution Licensure Commission, 483 A.2d 1172, 1183 (D.C. Ct. of Appeals, 1994) (finding that degree conferral is business conduct). Here, the factual basis alleged for a free speech violation is the same as for the Religion Clauses and passes constitutional muster for the same reasons. Defendant’s motion is granted as to Count III. 4. Count IV – Freedom of Association The Supreme Court “has recognized that the right to engage in activities protected by the First Amendment implies ‘a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.’” Board of Dirs. of Rotary Int’l v.

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Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 13 of 14 PageID #:360 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 Rotary Club of Duarte, 481 U.S. 537, 548 (1987) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). Plaintiffs contend that they are voluntary religious associations organized to assist in the expression and dissemination of religious doctrine and that the regulations at issue impose penalties and withhold benefits from individuals because of their membership in a group. Defendant counters that if complying with state regulation for issuing degrees implicates religious schools’ freedom of association, then it also implicates secular schools’ freedom of association and, thus every school could claim exemption.

The regulations here do not impede plaintiffs’ freedom of association. They do not mandate that plaintiffs employ particular individuals nor do they impede plaintiffs’ religious expression.

Plaintiffs are free to associate, to maintain anonymity from state intrusion, and to grant diplomas and certificates or otherwise describe their students’ academic achievement in a manner that does not involve granting “degrees.” Hosanna-Tabor, as defendant points out, protects a religious institution’s autonomy in deciding who provides its ministry. See Hosanna-Tabor, 132 S. Ct. at 706.

Neither party directs this Court to any relevant authority nor does this Court’s own research reveal any instance where a court has found freedom of association to be implicated in state regulation of the conferring of degrees. Accordingly, this Court grants defendant’s motion as to Count IV. 5. Count VI – Equal Protection Both the Academic Degree Act and the Private College Act contain grandfather clauses, exempting institutions that have been in existence prior to 1945 and 1961, respectively (110 ILCS 1005/2; 110 ILCS 1010/4(a)), which plaintiffs contend creates a disparity of treatment between newer and older religious schools. Plaintiffs assert in Count VI that the grandfather clauses impermissibly convey that older schools are more “legitimate” or “state approved” because those schools can grant degrees. Defendants argue that plaintiffs cannot state a claim under the Equal Protection Clause because no fundamental right and no suspect class are implicated in the 13

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Case: 1:15-cv-00444 Document #: 38 Filed: 03/28/16 Page 14 of 14 PageID #:361 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 grandfather clauses of the statutes at issue. This Court agrees. The Seventh Circuit has held that “[g]randfather clauses--laws that… curtail the application of new rules to existing entitlements-protect expectation interests, which is enough to make them rational and so defeat challenge under the equal protection clause.” McCann v. City of Chicago, 968 F.2d 635, 638 (7th Cir. 1992) (citing Nordlinger v. Hahn, 60 U.S.L.W. 4563 (U.S. June 18, 1992), and New Orleans v. Dukes, 427 U.S. 297 (1976)). Count VI therefore must be dismissed.

6. Broader Exemption from the Private Business and Vocational Schools Act Lastly, plaintiffs seek to broaden the exemption allowed under the Private Business and Vocational Schools Act. The Act provides an exemption to institutions devoted entirely to the teaching of religion or theology. 105 ILCS 426/30; 23 Ill. Adm. Code 1095.20(b)(1). Plaintiffs here are essentially seeking to teach any subject in any manner and to describe student achievement in whatever way they choose, entirely free from government oversight, under the auspices of religious freedom. They should seek the exemption through the legislative process rather than by injunction.

Such a result simply is not compelled by the First Amendment and plaintiffs’ allegations to the contrary are unpersuasive and not in keeping with this Court’s finding with respect to the remainder of the complaint.

Conclusion Based on the foregoing, this Court grants defendant’s Motion to Dismiss [24] and dismisses the case in its entirety. Civil case terminated.

IT IS SO ORDERED. Date: March 28, 2016

Entered: _____________________________ SHARON JOHNSON COLEMAN United States District Judge 14

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Case: 16-1754

Document: 11

Filed: 06/16/2016

Pages: 77

No. 16-1754 ______________________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

______________________________________________________________________________ Illinois Bible Colleges Association, et. al, Plaintiffs-Appellants, v.

Lindsay K. 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 No. 15-cv-444, Honorable Judge Sharon J. Coleman presiding. ______________________________________________________________________________ SHORT APPENDIX 3 ______________________________________________________________________________

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Case: 1:15-cv-00444 ILND 450 (Rev. 10/13) Judgment in a Civil Action

Document #: 39 Filed: 03/28/16 Page 1 of 1 PageID #:362 Case: 16-1754 Document: 11 Filed: 06/16/2016 Pages: 77 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Illinois Bible Colleges Association, United Faith Christian Institue and Bible College, Providence Baptist College, Civil Liberties for Urban Believers, Dayspring Bible College & Seminary, Leigh Pietsch,

Case No. 15 C 444 Judge Sharon Johnson Coleman

Plaintiff(s), v.

Lindsay K.H. Anderson, Chair of the Illinois Board of Higher Education, in her Official Capacity, Defendant(s).

JUDGMENT IN A CIVIL CASE Judgment is hereby entered (check appropriate box): in favor of plaintiff(s) and against defendant(s) in the amount of $ , which

includes pre–judgment interest. does not include pre–judgment interest.

Post-judgment interest accrues on that amount at the rate provided by law from the date of this judgment.

Plaintiff(s) shall recover costs from defendant(s).

in favor of defendant(s) Lindsay K.H. Anderson, Chair of the Illinois Board of Higher Education, in her Official Capacity and against plaintiff(s) Illinois Bible Colleges Association, United Faith Christian Institue and Bible College, Providence Baptist College, Civil Liberties for Urban Believers, Dayspring Bible College & Seminary, Leigh Pietsch .

Defendant(s) shall recover costs from plaintiff(s).

This action was (check one): tried by a jury with Judge presiding, and the jury has rendered a verdict. tried by Judge without a jury and the above decision was reached. decided by Judge Sharon Johnson Coleman on a motion to dismiss.

Date: 3/28/2016

Thomas G. Bruton, Clerk of Court /s/ Robbie Hunt , Deputy Clerk

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