Illinois Bible Colleges Association v. LINDSAY K. H. ANDERSON, Chair of the Illinois Board of Higher Education

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1754
ILLINOIS BIBLE C OLLEGES A SSOCIATION, et al.,
Plaintiffs-Appellants,
v.
LINDSAY K. H. A NDERSON, Chair of the Illinois Board of Higher
Education,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-cv-00444 — Sharon Johnson Coleman, Judge.
____________________
A RGUED D ECEMBER 8, 2016 — D ECIDED A UGUST 29, 2017
____________________
Before MANION, KANNE , and HAMILTON, Circuit Judges.
MANION, Circuit Judge. After graduating from high school,
students who go on to college hope to receive a degree to
qualify for future employment. The question in this case is
what does the State of Illinois require for post-secondary ed-
ucational institutions to issue a degree? Three Illinois statutes
regulate post-secondary educational institutions. Together,
these statutes require private junior colleges, colleges, and

-- 1 of 21 --

2 No. 16-1754
universities which offer degrees to obtain a certificate of ap-
proval and permission to issue degrees. The Illinois Board of
Higher Education enforces these statutes and before author-
izing degree-granting institutions to issue degrees, it con-
ducts a review of the operations, programs, faculty, and facil-
ities. The plaintiffs in this case include two associations repre-
senting religious institutions of higher education, several in-
dividual bible colleges, and a student, Leigh Pietsch. They
have sued the Board of Higher Education, alleging the three
state statutes violate their First Amendment and Equal Pro-
tection rights, as well as the Illinois constitution and Illinois
Religious Freedom Restoration Act. The defendants moved to
dismiss the complaint pursuant to Federal Rule of Civil Pro-
cedure 12(b)(6). The district court granted the motion and the
plaintiffs appeal.
On appeal, the plaintiffs pursue only their federal consti-
tutional claims. They first argue the Illinois regulations vio-
late the Establishment Clause by entangling the government
with their religious operations. However, the plaintiffs have
not sought certification of approval from the State under the
applicable statutes. Therefore, there is no basis to believe that
the regulations would infringe on their religious beliefs or
practices or would unnecessarily entangle the government in
religion. Accordingly, the plaintiffs’ Establishment Clause
claim must fail. Likewise, the plaintiffs’ Free Exercise claim
fails because the statutes are neutral laws of general applica-
tion and apply equally to secular and religious institutions.
The plaintiffs’ Equal Protection claim fares no better: While
the state statutes exempt older educational institutions from
the governing mandates, the law is clear that, when no im-

-- 2 of 21 --

No. 16-1754 3
proper discrimination is involved, the government may in-
clude a grandfather clause in legislation without violating the
guarantee of Equal Protection. Finally, the student-plaintiff
alleges a violation of his right to practice a profession of his
choice. But the regulations do not impact that choice. Rather,
they merely determine whether he may obtain a degree from
specific post-secondary institutions. The district court, there-
fore, properly dismissed the plaintiffs’ complaint and we af-
firm.
I.
The Illinois Association of Bible Colleges, Civil Liberties
for Urban Believers, Providence Baptist College, Dayspring
Bible College & Seminary, United Faith Christian Institute,
and student, Leigh Pietsch, (collectively “the Bible Colleges”)
sued the Illinois Board of Higher Education, through its chair
Lindsay K. Anderson (“the Board”). The individual Bible Col-
leges involved in this litigation are also affiliated with faith
communities and all serve as educational ministries of their
churches.
The Bible Colleges alleged 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 First
Amendment and Equal Protection Clause of the United States
Constitution, as well as the Illinois constitution and the Illi-
nois Religious Freedom Restoration Act. Pietsch alleged the
statutes also violate his First Amendment and Equal Protec-
tion Clause rights and his constitutional right to pursue the
calling of his choice.

-- 3 of 21 --

4 No. 16-1754
The three statutes at issue regulate different aspects of
higher education. For instance, the Private College Act regu-
lates the operation of private colleges, junior colleges, and
universities that offer “degrees” and requires such institu-
tions to obtain a “certificate of approval” from the Board. 110
ILCS 1005/2. The statute defines a “degree” as “any designa-
tion, 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.
Decisions by the Board under the Private College Act are sub-
ject to judicial review. 110 ILCS 1005/12.
The Academic Degree Act also regulates post-secondary
education and prohibits a “degree-granting institution” from
“issuing” degrees without Board approval. The Academic
Degree Act definition of “degree” mirrors the term’s use in
the Private College Act. And like the Private College Act, de-
cisions of the Board under the Academic Degree Act are sub-
ject to judicial review. 110 ILCS 1010/10.
The third statute at issue, the Private Business and Voca-
tional Schools Act of 2012, requires vocational schools which
issue “certificates” or “certificates of completion” to obtain
approval from the Board. The Private Business and Voca-
tional Schools Act exempts schools which provide entirely re-
ligious or theological education. 105 ILCS 426/30.
Before issuing a permit of approval, the Board evaluates
post-secondary schools based on a variety of factors, such as
“the caliber and content of each course or program of instruc-
tion,” the number of credit hours required for undergraduate
and graduate degrees, the educational credentials of faculty
and applicants, and the institution’s record-keeping. 23 Ill.

-- 4 of 21 --

No. 16-1754 5
Adm. Code 1030.30. The Board also looks at the institution’s
finances, the appropriateness of the program’s promotional
materials, the sufficiency of facilities and equipment, and
clear communications concerning tuition and fees charged,
among other things. Obviously, this is a very comprehensive
review.
The Bible Colleges offer an array of courses outside the
sphere of religion and theology, in areas ranging from office
skills and cooking, to Spanish, music, and botany. Nonethe-
less, the Bible Colleges have never sought certification from
the Board and claim they are exempt from the statutes. Yet the
Bible Colleges wish to offer bachelor, master, and doctorate
degrees without government oversight. The plaintiff schools
insist that without the ability to issue degrees, they are at a
competitive disadvantage in attracting students with out-of-
state bible colleges which offer degrees.
After the Board informed the colleges that they were sub-
ject to the higher-education statutes and must submit a series
of applications and permits for approval, the Bible Colleges
filed this suit. In their complaint, the Bible Colleges alleged
the three Illinois statutes violate the Establishment, Free Exer-
cise, and Equal Protection Clauses of the United States Con-
stitution. They also alleged violations of the Illinois constitu-
tion and the Illinois Religious Freedom Restoration Act, but
they later voluntarily dismissed those state law claims and
they are not at issue on appeal.
The Board moved to dismiss the Bible Colleges’ complaint
pursuant to Rule 12(b)(6). In their response, the Bible Colleges
made clear that they were presenting an as-applied chal-
lenge—not a facial challenge—and that they sought a blanket

-- 5 of 21 --

6 No. 16-1754
exemption from the three Illinois statutes regulating post-sec-
ondary education based on their religious opposition to com-
plying with the law. The district court concluded that the Bi-
ble Colleges’ as-applied challenge failed as a matter of law
and granted the Board’s motion to dismiss. The Bible Colleges
appeal.
II.
On appeal, the Bible Colleges advance the same argu-
ments presented below that the three Illinois statutes govern-
ing post-secondary education violate the Establishment, Free
Exercise, and Equal Protection Clauses of the Constitution
and that the district court erred in dismissing their complaint
pursuant to Rule 12(b)(6). Additionally, Pietsch argues the
district court erred in dismissing his individual claims prem-
ised on his First Amendment right to association, as well as
his constitutional right to pursue the calling of his choice.
To survive a motion to dismiss, 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).
“A claim has facial plausibility when the plaintiff pleads fac-
tual content that allows the court to draw the reasonable in-
ference that the defendant is liable for the misconduct al-
leged.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007)). This court reviews a district court’s motion to dis-
miss de novo, accepting all well-pleaded factual allegations in
the complaint as true and drawing all reasonable inferences
in the plaintiffs’ favor.
A. Establishment Clause
The Bible Colleges first argue that the Illinois higher-edu-
cation statutes violate the Establishment Clause which, of

-- 6 of 21 --

No. 16-1754 7
course, provides that “Congress shall make no law respecting
an establishment of religion.” Specifically, the plaintiffs claim
that the Board is impermissibly setting standards for religious
education without a secular justification. See Lemon v. Kurtz-
man, 403 U.S. 602, 612–13 (1971).
However, contrary to the Bible Colleges’ argument, the
statutes at issue do not set a standard for “religious” educa-
tion. Rather, they set criteria under which the Board will re-
view all post-secondary institutions of education and degrees
issued by those schools. And states have a valid secular inter-
est in maintaining standards for post-secondary institutions.
Id. at 613 (“A State always has a legitimate concern for main-
taining minimum standards in all schools it allows to oper-
ate.”).
Alternatively, the plaintiffs claim that Illinois defines “de-
gree” so broadly “that the religious colleges in this case can-
not describe their students’ achievements in any conceivable
way without violating the State’s” licensing statutes. For in-
stance, the plaintiffs “contend that even ‘diplomas’ and ‘cer-
tificates,’ 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.” The Bible Col-
leges then argue that “[w]ithout the ability to describe student
achievement, religious colleges are severely inhibited from
pursuing their mission.”
In its brief before this court, the Board argues that “‘de-
gree’ has a longstanding, well-established, and legally recog-
nized meaning: it is a title granted by a college, university, or
professional school upon completion of a program of study
requiring a minimum number of courses.” But in presenting
this definition to the court, the Board ignores the statutory

-- 7 of 21 --

8 No. 16-1754
definition of “degree.” As the plaintiffs point out, this raises
the specter of unbounded reach by providing that “degree”
means: “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 or-
ganized academic program of study beyond the secondary
school level.” 110 ILCS 1005/1 and 110 ILCS 1010/2. Accord-
ingly, we agree with the Bible Colleges that the Illinois statu-
tory definition of “degree” (excerpt above) is so broad that it
seemingly bars any denotation of successful completion of the
course work at the Bible Colleges. Yet the Bible Colleges must
be able to provide some formal recognition to those who have
worked and studied in a way their community deems appro-
priate to join in their church’s mission. The Bible Colleges
might have a legitimate Establishment Clause claim if they
sought to issue some formal acknowledgment of religious
training but were barred from doing so. See, e.g., HEB Minis-
tries, 235 S.W. 3d 627, 667 (Tex. 2007) (“To give but one exam-
ple, subchapter G would not prohibit a religious institution
from issuing a document certifying that ‘John Doe has com-
pleted an advanced course of study in X and is qualified to
minister in Y church.’”). But in presenting their as-applied
challenge to the State’s licensing laws, the Bible Colleges seek
a blanket exemption from the statutes and the right to issue
whatever recognition they desire, including degrees which do
have a well-established and understood meaning such as a
bachelor’s, master’s, or doctorate degree. See, e.g., id. at 668
(Jefferson, C.J., dissenting) (“Words like ‘bachelor’s,’ ‘mas-
ter’s,’ and ‘doctorate’ have acquired meaning that permits
them to stand on their own … and permit, as here, an unac-
credited institution’s graduates to overstate their creden-
tials.”). The Bible Colleges explain that it is more difficult to

-- 8 of 21 --

No. 16-1754 9
attract students without the ability to issue such degrees.
They oppose seeking State approval for their programs for
doctrinal reasons and at the same time want the right to de-
scribe their programs of study in any way they deem appro-
priate.
Because the plaintiffs did not apply for certification, the
Board did not evaluate the content of the religious education
or the qualifications of their professors. Without such a re-
view, the question is not before this court. It is possible that
State officials could apply these statutes to plaintiffs in ways
that would pose problems under the Establishment or Free
Exercise Clauses. But unless and until plaintiffs seek certifica-
tions of approval, plaintiffs cannot plausibly allege that the
statutes have been applied to them in unconstitutional ways
or that the statutes inhibit (or advance) religion. See Lemon,
403 U.S. at 612–13 (a law violates the Establishment Clause if
its primary effect advances or inhibits religion).
The Bible Colleges also argue that the statutes entangle the
State with religion by requiring the Board to evaluate how re-
ligion is taught. But, as just noted, this appeal concerns an as-
applied challenge to the statute and the Bible Colleges never
sought certification from the Board. Thus, at this time, the
plaintiffs cannot plausibly allege that the Board became ex-
cessively entangled with religion. See id. (holding that a law
may not excessively entangle the government with religion).
Should that happen, the Bible Colleges would have recourse
at that point.
Nonetheless, the Bible Colleges argue the Illinois statutes
violate the Lemon test based on the plurality opinion in HEB
Ministries, 235 S.W. 3d 627, 647 (Tex. 2007). HEB Ministries, of
course, is a Texas Supreme Court case and is not controlling.

-- 9 of 21 --

10 No. 16-1754
In any event, we find the analysis flawed. The plurality in that
case reasoned that “a principal or primary effect [of the stat-
ute] is to advance religious education the State approves and
inhibit what it does not.” HEB Ministries, 235 S.W.3d at 647.
The plurality further asserted that it is “beyond serious
dispute that the statute clearly and excessively entangles the
government in matters of religious instruction” because the
Board’s standards “cannot be applied without a thorough, de-
tailed, and repeated examination of an institution’s opera-
tions and curriculum.” Id.
But as Chief Justice Jefferson’s dissent in HEB Ministries
recognized, “allowing a religious institution to participate in
secular regulatory schemes simply does not violate the Estab-
lishment Clause.” Id. at 666 (Jefferson, C.J., dissenting). Fur-
ther, like the dissent in HEB Ministries, we find the reasoning
of State v. Clarksville School of Theology, 636 S.W.3d 706 (Tenn.
1982), and N.J. State Board of Higher Education v. Board of Direc-
tors, 448 A.3d 988 (N.J. 1982), more persuasive. In Clarksville,
as the Tennessee Supreme Court explained:
[The Tennessee statute] places neither a direct nor in-
direct burden upon the free exercise of religion by the
defendants nor threatens an entanglement between the
affairs of church and state … . [T]he Act does not reg-
ulate the beliefs, practices or teachings of any institu-
tion; it merely sets forth minimum standards which
must be met in order for an institution to be authorized
to issue degrees. Moreover, the evidence shows that
the granting of degrees is a purely secular activity. It is
only this activity that brings the School under the reg-
ulation of the Act.

-- 10 of 21 --

No. 16-1754 11
636 S.W.3d at 709.
Similarly, the Supreme Court of New Jersey held “that the
State’s program for licensing institutions of higher education
is applicable to sectarian institutions and that facially it does
not … create an excessive state entanglement with religion.”
Shelton College, 448 A.2d at 997–98, The court reasoned that
“[t]he Establishment Clause permits minor, unobtrusive state
supervision of religiously oriented schools” and that “[n]one
of the education statutes or regulations here in question man-
dates active involvement of the sovereign in religious activ-
ity.” Id. at 997 (internal quotation omitted). The court added
that the statutes did not require “regulation of the content of
an educational program.” Id.
We agree with Clarksville and Shelton’s reasoning: The Illi-
nois statutes do not regulate the beliefs of any institution or
the content of the education. Further, the Bible Colleges “can
choose to not comply with the Act and yet may continue to
train ministers as [they choose]; such non-compliance with
the Act will simply prohibit the School from granting de-
grees.” Id.
Of course, as we have already stressed, the Board cannot
so broadly characterize “degrees” that it effectively prevents
the Bible Colleges from signifying that students have success-
fully completed the minister training. But that is not the Bible
Colleges’ complaint, nor the Board’s practice. See, e.g., August
26, 2013 Letter from Board to Dayspring Bible College (stating
certificates or diplomas may be awarded for courses of study
in religion or theology). For these reasons, we conclude that
plaintiffs have not plausibly alleged that the Illinois statutes
have been applied to them in ways that would violate the Es-
tablishment Clause of the First Amendment.

-- 11 of 21 --

12 No. 16-1754
B. Free Exercise Clause
Alternatively, the Bible Colleges argue the Illinois higher-
education statutes violate the Free Exercise Clause of the First
Amendment. The district court rejected this argument and
found the Supreme Court’s holding in Employment Division v.
Smith, 494 U.S. 872 (1990), governed. In Smith, the Court held:
“The right of free exercise does not relieve an individual of
the obligation to comply with a valid and neutral law of gen-
eral applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or pro-
scribes).” Id. at 879. Under Smith, a neutral law of general ap-
plicability is constitutional if it is supported by a rational ba-
sis.
Of course, as the Supreme Court recently made clear in
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct.
2012, 2021 (2017), a law may not “regulate or outlaw conduct
because it is religiously motived,” and “[t]he Free Exercise
Clause protects against laws that ‘impose[] special disabilities
on the basis of … religious status.’” (quoting Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993)).
The statutes in this case conform to the strictures of the
Free Exercise Clause. First, they are neutral: They do not tar-
get religion or religious institutions. There is no allegation of
an underlying religious animus. Further, certification of
schools is based on the State’s review of secular criteria that
focuses on the schools’ faculty, facilities, and courses. The
statutes are also generally applicable, applying equally to sec-
ular and religious post-secondary institutions. Likewise, the
laws are rationally related to a valid government purpose,
namely protecting students and employers from relying on

-- 12 of 21 --

No. 16-1754 13
degrees with no true academic value, and protecting legiti-
mate institutions of higher education by safeguarding the
value of their degrees. And finally, at least at this point, there
is no evidence that regulation of these factors imposes a spe-
cial disability on religions or religious beliefs and practices.
The Supreme Court’s decisions in Locke v. Davey, 540 U.S.
712 (2004), and Trinity Lutheran support our conclusion. In
Locke, the plaintiff challenged a Washington law which barred
students from using state scholarship funds to pursue a devo-
tional theology degree. The Supreme Court held that Wash-
ington’s restriction did not infringe on a student’s First
Amendment Free Exercise right because the law did not re-
quire individuals to “choose between their religious beliefs
and receiving a government benefit.” Locke, 540 U.S. at 721.
Conversely, in Trinity Lutheran the Supreme Court held
that a Missouri law barring religious schools from participat-
ing in a state-funded program violated the Establishment
Clause because “Trinity Lutheran is put to the choice between
being a church and receiving a government benefit.” 137 S. Ct.
at 2024. In reaching this conclusion, the Supreme Court dis-
tinguished Locke, explaining the student in Locke “was not de-
nied a scholarship because of who he was; he was denied a
scholarship because of what he proposed to do—use the funds
to prepare for the ministry.” Id. at 2023. The student in Locke
“was free to use [his] scholarships at ‘pervasively religious
schools.’” Id. He could “pursue a secular degree at one insti-
tution while studying devotional theology at another.” Id. A
student could also use “scholarship money to attend a reli-
gious college and take devotional theology courses there.” Id.
The only thing a student “could not do was use the scholar-
ship to pursue a degree in that subject.” Id. at 2024. In contrast,

-- 13 of 21 --

14 No. 16-1754
the State “expressly require[d] Trinity Lutheran to renounce
its religious character in order to participate in an otherwise
general available public benefit program, for which it [was]
fully qualified.” Id. at 2024. The Supreme Court thus held in
Trinity Lutheran that Locke did not control.
The Illinois regulatory scheme at issue in this case falls on
the Locke side of the line. The colleges may teach their faith
without interference and use whatever faculty and methods
they believe appropriate. And they may communicate their
faith in any way they desire. It is only if the Bible Colleges
seek to issue degrees that they must comply with the stand-
ards of the Illinois statute; only when the colleges venture into
the secular sphere is regulatory oversight required. Even
then, the Board does not assess the underlying religious belief
being conveyed.
Again, the Bible Colleges cite to HEB Ministries: In HEB
Ministries, the Texas Supreme Court plurality stated that “[a]
law is not neutral or generally applicable for purposes of ap-
plying the Free Exercise Clause merely because it affects eve-
ryone; it is important how religion is affected differently be-
cause it is religion.” 235 S.W. 3d at 659. The HEB Ministries
court explained “the fact that [a statute] burdens all private
post-secondary institutions does not lessen its significant, pe-
culiar impact on religious institutions offering religious
courses of study.” Id. at 643.
We disagree. The burdens on post-secondary institutions
do not differ based on the religious nature of the institution:
Both secular and non-secular institutions must satisfy the
same criteria, and there is no basis to conclude that a religious
institution would face any peculiar or significant impact.

-- 14 of 21 --

No. 16-1754 15
Alternatively, the Bible Colleges argue the statutes are
nonetheless subject to strict scrutiny because following Smith,
the Supreme Court in Church of Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520 (1993) carved out two exceptions to the
general holding that such laws need only a rational basis to
withstand attack: Neutral and generally applicable laws are
still subject to strict scrutiny if (1) the government is allowed
to make individualized exemptions from a general require-
ment, or (2) the claim is a hybrid-rights claim because it trig-
gers additional constitutional rights. Id. at 524.
Neither exception to Smith’s general rule applies in this
case. First, the Illinois statutes do not provide for individual-
ized exemptions to the licensing requirement. They do re-
quire the Board to consider individual factors, such as looking
to “the caliber and content of each course or program of in-
struction,” and the “education, experience and other qualifi-
cations of faculty.” But that individualized factors govern the
application of a law of general applicability does not render
Smith’s holding inapplicable. For instance, the majority of cir-
cuits, including this one, have concluded that zoning laws
which provide the opportunity for individualized variances
are neutral laws of general applicability. Civil Liberties for Ur-
ban Believers v. City of Chicago, 342 F.3d 752, 764-65 (7th Cir.
2003); Fortress Bible Church v. Feiner, 694 F.3d 208, 220 (2d Cir.
2012) (collecting cases).
Second, the Bible Colleges have not presented a hybrid-
rights claim. While they attempt to tie their free exercise claim
to a free speech claim by arguing the regulations impact the
“communication of religious beliefs,” such an argument is

-- 15 of 21 --

16 No. 16-1754
misplaced. As the dissent in HEB Ministries explained, the
communicative aspect of speech considered by the Court in
Smith illustrated a “much higher involvement necessary to
implicate the freedom of speech analysis.” See, e.g., HEB Min-
istries, 235 S.W.3d at 667 (Jefferson, C.J., dissenting).
Further, “in Smith, the Supreme Court noted that, in cases
implicating the Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech and
freedom of association, the First Amendment may subject the
application to religiously motivated action of a neutral, gen-
erally applicable law to a heightened level of scrutiny.” Civil
Liberties for Urban Believers v. City of Chicago, 342 F.3d at 764–
65 (citing Smith, 494 U.S. at 881–82). But we added: “‘[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 al-
leged fundamental right.’” Id. 765 (quoting Miller v. Reed, 176
F.3d 1202, 1207–08 (9th Cir. 1999)).
In this case, the Bible Colleges have merely recast the same
Free Exercise Clause objection to the Illinois statutes under a
variety of other constitutional clauses. Yet no matter how
framed, the Bible Colleges’ claims all lack merit, at least before
we see how the statutes are actually applied to the plaintiffs.
Accordingly, the heightened scrutiny afforded hybrid claims
does not apply here.
The Bible Colleges also attempt to circumvent Smith by cit-
ing to Hosanna-Tabor Evangelical Lutheran Church v. Equal Em-
ployment Opportunity Commission, 132 S. Ct. 694 (2012), and ar-
guing the government is infringing on their right to shape
their own faith and mission through their appointments of

-- 16 of 21 --

No. 16-1754 17
faculty. The Bible Colleges reason that because the Illinois
statutes direct the Board to assure that faculty teaching at
post-secondary institutions of education hold minimal quali-
fications, the laws infringe on their right to select those who
will personify their beliefs.
Hosanna-Tabor does not support the plaintiffs’ argument.
The question before the Court in Hosanna-Tabor was whether
a private Christian school could be sued under the Americans
with Disabilities Act (“ADA”) after it fired a teacher. After
concluding that the teacher served in a ministerial role for the
school, the Court held the Establishment Clause prevented
the plaintiff from suing under the ADA because “[s]uch ac-
tion interferes with the internal governance of the church, de-
priving the church of control over the selection of those who
will personify its beliefs.”
Unlike the facts in Hosanna-Tabor, the Illinois statutes do
not require the church sponsors of the Bible Colleges to hire
or retain any specific minister. The Bible Colleges are free to
hire or fire a faculty member anyone they see fit. They are also
free to teach students religion and theology and to incorpo-
rate faith-based instruction in all subjects without Board over-
sight. But what they cannot do is operate entirely without
State oversight while issuing whatever degrees they deem ap-
propriate, such as a bachelor’s, master’s, or doctorate degree.
Requiring compliance with the State’s secular statutory re-
quirements does not implicate Hosanna-Tabor’s holding.
C. Remaining Constitutional Claims
The Bible Colleges present several additional constitu-
tional claims but, for the most part, they parallel their Free
Exercise and Establishment Clause claims. For instance, the

-- 17 of 21 --

18 No. 16-1754
Bible Colleges argue that their allegations were sufficient to
support a Free Speech claim. Here they argue that the statutes
infringe on their right to communicate with the students, first
by defining “degree” “so broadly that any method of com-
municating student achievement beyond the secondary
school level is foreclosed.” But, as explained above, the Bible
Colleges seek a blanket exemption to the regulation—abso-
lutely no oversight—as well as the right to issue bachelor’s,
master’s, and doctorate degrees or whatever degree they de-
sire. The Board does not infringe on the Bible Colleges’ right
to free speech by regulating degree-issuing post-secondary
education; rather, any interference with the Bible Colleges’
speech is at most incidental and within constitutional bounds.
Alternatively, the Bible Colleges claim that their right to
free speech is infringed because they are prohibited from is-
suing a bachelor’s degree to students who complete a “four-
year academic program and a rigorous curriculum,” unless
they “first disregard[] its religious principles and submit[] to
the State intervention of its religious teaching.” But the Bible
Colleges never submitted to the State’s review of their degree
programs, so any claim that the State applied a “content-
based” regulation of their speech based on the Bible Colleges’
“religious principles” or “religious teachings” fails, or is at
least premature before the laws are actually applied to them.
Accordingly, the district court properly dismissed the Bible
Colleges’ Free Speech claims.
The Bible Colleges also argue that the Board violated their
constitutional right to freedom of association. Specifically,
they argue that the Board’s regulation interferes with their
“voluntary associations which have been organized to assist
in the expression and dissemination of religious doctrine.”

-- 18 of 21 --

No. 16-1754 19
However, the Board does not limit or interfere with the plain-
tiffs’ right to associate or disseminate religious doctrine. Ra-
ther, if the Bible Colleges wish to issue degrees they must
comply with the statutory mandates. While framed differ-
ently than their Free Exercise claim, the Bible Colleges’ free-
dom of association claim is governed by the same analysis
and fails for the same reason.
Finally, the Bible Colleges argue that the Academic Degree
Act and the Private College Act violate the Equal Protection
Clause because they both contain grandfather clauses which
exempt educational institutions that had been in existence
prior to 1945 and 1961 respectively. 110 ILCS 1005/2 and 110
ILCS 1010/4(a). By exempting older institutes of higher learn-
ing from the statutes, the Bible Colleges claim the State is vio-
lating “[t]he basic requirement of the Equal Protection Clause
[] that ‘all persons similarly situated should be treated alike.”
Appellants Reply Brief at 23 (quoting City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).
The Bible Colleges’ Equal Protection claim is easily re-
solved. Distinguishing educational institutions by their
founding date does not implicate a fundamental right or a
protected class. That the Bible Colleges are religious colleges
does not alter that result, because the statutes at issue do not
distinguish between secular and religious colleges but instead
differentiate all institutes of higher education equivalently
other than those established before the date the statutes were
passed. Thus, we review the statutes for a rational basis. And
this court has held that in the absence of some sort of invidi-
ous discrimination “[g]randfather clauses—laws that … cur-
tail the application of new rules to existing entitlements—pro-

-- 19 of 21 --

20 No. 16-1754
tect expectation interests, which is enough to make them ra-
tional and so defeat challenge under the equal protection
clause.” McCann v. City of Chicago, 968 F.2d 635, 638 (7th Cir.
1992). Accordingly, the Bible Colleges’ Equal Protection claim
cannot succeed and dismissal was appropriate.
In addition to joining the Bible Colleges in their various
constitutional claims—which fail—plaintiff Leigh Pietsch
adds a claim premised on his constitutional right to work in
the profession of his choice. While the Supreme Court has rec-
ognized the Constitution protects the right to work, regulat-
ing the Bible Colleges does not implicate those rights. Pietsch
is free to attend the Bible Colleges and pursue any job desired.
The regulations do not impact those rights. But Pietsch does
not have a constitutional right to obtain a degree from a col-
lege which refuses to comply with State regulations even if
that impacts his marketability. Therefore the district court
properly dismissed Pietsch’s claims.
III.
The Bible Colleges and student Pietsch seek a complete ex-
emption from the Illinois statutes governing oversight of
post-secondary education based on the Free Exercise and Es-
tablishment Clauses of the constitution. But the Illinois stat-
utes apply equally to secular and religious post-secondary in-
stitutions and are thus neutral and generally applicable. The
State also has several secular reasons for requiring Board
oversight of the educational institutions—to safeguard stu-
dents and employers from sub-standard or fraudulent de-
grees and to protect legitimate institutions of higher learning
from dilution of their degrees. The statutes also do not ad-

-- 20 of 21 --

No. 16-1754 21
vance or inhibit religion or excessively entangle the govern-
ment with religion. Accordingly, the district court properly
dismissed the plaintiffs’ religious-clause claims.
The plaintiffs’ other claims fare no better. Their right to
free speech does not include a right to use deceptive language
to describe a post-secondary degree, and the Equal Protection
Clause recognizes the validity of grandfather clauses. Finally,
Pietsch’s allegations do not support a constitutional claim
based upon his right to work. For these and the foregoing rea-
sons, we AFFIRM.

-- 21 of 21 --