The Institute for Creation Research (ICR) has filed a lawsuit against the Texas Higher Education Coordinating Board (THECB) for denying it authority to issue masters degrees in science education. The ICR, of course, is a young earth creationist outfit that recently moved to Texas from California. It’s been running what it calls a graduate school for several years, issuing worthless pieces of paper that it calls advanced degrees in various sciences. Sadly, the ICR’s “graduate school” was officially accredited by a nationally recognized accreditation agency—something I consider something of a scandal. But when ICR moved, it withdrew from that national accreditation because it expected that it would get accreditation from the state of Texas. That turned out not to happen: THECB unanimously denied ICR’s request for authority to grant degrees purporting to be scientific degrees.
Now ICR’s filed a federal lawsuit, and you can read the complaint here. It takes a while to download, given that it’s 67 single-spaced pages, and includes 86 footnotes, including one that takes up more than an entire page. It has all sorts of over-the-top grandstanding rhetoric that doesn’t belong in a complaint—complete with italics, boldfaced, underlining, delightful misspellings and malapropisms. (My favorite for you Blue Book experts out there, is in paragraph 67: “See, accord, 1st Timothy 6:20....”*) It’s entertaining in other ways. But these hardly make up for the pain of having to actually read the thing. Worst of all, the complaint does not break out separate causes of action, which makes it extremely difficult to understand the exact legal theories being advanced here.... Sort of typical of the sloppy thinking and the rhetorical tricks of creationists in scientific discourse as well.
But federal courts have liberal pleading rules, so judges will have to allow the case to proceed if it alleges facts sufficient to make out any cause of action, even if poorly pleaded. Let’s just say it’s the first time I’ve ever felt sorry for a federal judge.
Anyway, the allegations are that THECB has violated various constitutional rights by denying it certification on the basis of its religious viewpoint. ICR argues, among other things, that Chapter 61 of the Texas Education Code is unconstitutional. That chapter establishes the THECB and gives it the authority to regulate the issuing of “degrees” as that term is statutorily defined. No person or institution, whether public or private, may issue a degree—that is, a document that includes words like “Bachelor’s Degre”—without obtaining state permission first.
Now, such a law does have the potential to violate First Amendment rights, including freedom of expression and freedom of religion. For government to require its permission before you can issue a piece of paper with a word on it would be unconstitutional. And in HEB Ministries, Inc. v. Texas Higher Education Board, 235 S.W.3d 627 (Tex. 2007), the Texas Supreme Court did strike down a portion of that statute, holding that it was unconstitutional for the state to restrict the use of words like “seminary.” The court held that
If...[the law] restricts not only the use of “seminary” but any other word of related import, then the statute denies a religious school that does not meet state standards all access to names used by such schools. And if [it restricts only that word]...the statute nevertheless limits access to the name that, unlike all others available, distinctly describes religious schools. Either way, the statute, in its application to schools offering only religious instruction, targets religious practices, discriminating between those that comply with state standards from those that do not, and is not merely a neutral regulation of post-secondary education.
Id. at 657. Several of the judges would have gone further and found the restrictions on terms like “degree” to be unconstitutional as well.
This is not an easy issue. On the one hand, the state can limit the use of certain descriptions and claims of quality in order to prevent fraud and protect consumers. But on the other hand, too severe a restriction can violate freedom of expression and other freedoms. One thinks of the recent lawsuits over restricting the use of the words “interior designer,” for instance. There is a reasonable argument to be made that the state has no appropriate role in restricting the use of a document called a “masters’ degree,” and I tend to believe that we should err on the side of freedom, and let degree mills issue their worthless degrees if they want. It’s up to us to point out their worthlessness. But it is also true that if a person purports to know a skill and another person relies on that and is injured, the state ought to intercede to protect innocent persons. You can’t claim that rules against incompetence are a form of “viewpoint discrimination”!
Simply put, crackpots have a constitutional right to be crackpots—as long as they only crack their own pots.
That said, what ICR wants isn’t just the right to issue its own diplomas; it also wants the court to order THECB to give it certification. Now, certification is more than permission to issue degrees; it’s also a seal of approval. And while anyone has the right to publish what he likes, nobody has the right to a state-issued seal of approval on that thing. What ICR wants is respectability, without earning it, and without having a constitutional right to it. It wants more than that, even. It literally asks the court to rewrite the law, and even provides wording it would like the court to issue: on page 66, it asks the court to declare that a private educational institution is exempt from the law if it accepts no government funding, is a not-profit-entity, and is not operated as a degree mill. Now, although they’re often accused of it, courts can’t actually rewrite a law. They can declare it unconstitutional, but they can’t issue “declaratory relief” that adds new sections to statutes!
So there is at least one meaningful thing buried in this astonishing complaint; states really should not use their accreditation or certificaion powers to enforce any particular belief. But this is buried so far down in such a miasma of absurd verbiage and posturing that it is hard to imagine that the court will even be able to cut through it all. And even if it does, there’s another handicap that may be fatal: the ICR has not exhausted its administrative remedies.
The “exhaustion” doctrine requires that a person go through whatever possible remedies are provided for by a law before that person can go to court: so if, for example, the city building department denies your building permit application, but city ordinances provide some sort of waiver mechanism or allows you to appeal to the full city council, you must first ask for a waiver or appeal before you can sue. That’s called “ripening” your case. Here, ICR has appealed the denial of their certification, and that appeal is still pending—no decision has yet been made. Now, it’s a sad fact that these administrative appeals can go on for a very long time, frustrating people’s constitutional rights in many cases. But under the current law you usually cannot sue while an administrative proceeding is going on, and that’s what ICR is trying to do. They basically admit in their complaint that the case is not ripe, and they give no good reason why they should be allowed to skip that step. They argue that the statute of limitations is running out—but it isn’t! An injury isn’t considered complete until you’ve ripened your case by getting a final decision from the administrative agency. So this case is filed too early—which the complaint itself basically admits.
Bottom line: a great example of how not to write a complaint. There are serious constitutional problems with how Texas regulates higher education. But this is not the way to make those arguments.
*-First, you do not put both See and accord. Second, there is usually no comma after See. Third, you do not boldface. Fourth, it is 1 Timothy, not 1st Timothy. Fifth, the name of the book is often italicized.
Update: I have changed a little bit of wording to clear up some inaccuracies.