Virginia College Building Authority v. Lynn

Building Authority Virginia College

v.

Barry Lynn, et al.

Record No. 992099 November Koontz, Lemons, JJ., Kinser and Carrico, C.J., Keenan, Present: Lacy, Poff, SJ. Sonne; McGuire, Woods, (James William G. Broaddus A. Battle Boothe, & briefs), on for appellant. Green; Bricker;

Ayesha (Steven Khan K. Steve Rebecca K. Ferris; Associates, Richard Glenberg; W. Steve Bricker brief), & on for appellees.

Amicus Curiae: State Council Higher (Mark Education L. Ear- Hurd, General; General; ley, William H. Attorney Solicitor L. Ashley Jr., General; Matsen, Taylor, Deputy Attorney Maureen R. Senior General; Assistant R Attorney Alison Assistant Landry, Attorney General; General, Valerie L. brief), Assistant Myers, on Attorney support appellant.

JUSTICE LEMONS delivered the of the Court. opinion

The (“VCBA” Virginia College Building or “Author- Authority bonds, ity”) issuance revenue referred approved colloquially bonds,” to as “conduit for the benefit University to be were (“Regent”). funds raised bonds designated finance at a new in Alexandria projects campus refinancing of student on Beach housing Pursuant to the Virginia campus. -2663, Public Finance Act of Code 15.2-2600 to the VCBA §§ for the Rich- filed a the Circuit Court City motion judgment bonds. mond validation requesting members of Barry Virginia other unnamed Appellees, Lynn State, and Frank Americans United for of Church Separation Bauer, Feibelman, and Bernard H. Levin and filed Mary appeared the validation of the bonds. At the contesting of defense grounds time of the circuit court VCBA had hearing, completed approxi- in bond issues for universities mately thirty-five colleges private the Virginia. Commonwealth of evidence, the circuit

After court refused validate hearing bonds, VCBA is holding Regent ineligible participate and because is sectarian institution Regent pervasively is In because its “religious training.” appeal, primary purpose we court’s denial of Regent University’s consider circuit partici- in of these Educational financing pursuant bond pation projects Act, (the “Act”). Code Authority Facilities 23-30.39 et seq.

I. FACTS A. REGENT UNIVERSITY as uni- Regent is self-described Christian University “private Beach, in a main located versity” campus Virginia Virginia. more than 20 accredited Regent graduate degrees through eight offers Arts, of Communication and the colleges, including College Government, Services, School and Human of of School Counseling Business, Education, Law, of School of School of School of School accredited Divinity, Regent and Center Studies.1 Leadership (“SACS”) of and Schools and by Colleges Southern Association its Law accredited the American Bar Associ- School separately (“ABA”). ation (“Pat”) Dr. Robertson’s

Regent upon was founded M.G. institution establishing graduate-level vision of “inspired and for the of challenge would train mature men women representing It ... to recover the Christ in their was “incorporated professions.” 1 Regent graduate degrees: Organizational following M.A. in Ph.D. in offers Leadership, Organizational Journalism, M.A. in and Communication, M.A. in in M.A. Script Leadership, Psychology, Counseling, of M.A. Screenwriting, Communication, M.A. in Doctor in Ph.D. Missiology, Theology, of in Missi M.A. in Practical Master Studies, Biblical M.A. Divinity Theology, ology, Education, Doctor of Master Master of in Practical Ministry, Divinity Manage in Public M.A. Political Studies, M.A. Certificate of Advanced Graduate Policy, Administration, and Juris Doctor. ment, Master of Public Christian our nation.” “ultimate is to heritage Regent’s purpose” Son, God and His Jesus Christ.” “glorify[] was created under of the Christian Regent Broad- auspices Network, (“CBN”), Inc. casting Board Directors which still and chairman all 48 members of the Board appoints University’s Three Regents. members of board are also members of Regent’s CBN’s board. Characterized as a with a “parachurch organization” “Christian CBN is to own purpose,” all assets incur all debts in the event of the dissolution has over Regent. Regent received $200 million in financial from CBN. As founder and support CBN, and the president Chancellor of acts Regent, Robertson as “the liaison” between CBN principal He consults with Regent. “on such matters as the mission of the university, its scope direction,” and its on guidance provides coordinates matters such as fiscal Regent’s expenditures resource general development. Articles of

Regent’s that: Incorporation, provide shall exist for the [Regent] bringing glory God and His Son Jesus Christ by an institution or institu- providing tions of in which those are in learning who mature the knowl- of God and edge His can assist and in a ways guide, of spirit excellence, free and inquiry scholarly those would who learn Him, creation, of His and His ways, together study while they to God and better ways glorify their world.

Regent has a Statement of Faith that adopted provides:

Regent University is Christ-centered institution. The Trustees, Board with and staff of the along faculty uni- versity, committed to an and evangelical interpretation of the Christian faith. The application is campus community movement, closely identified the present-day renewal which the gifts, fruit and emphasizes Holy ministries trustees, officers, It is all that Spirit. administrators expected and to faculty will subscribe this statement in writing: 1. That the Bible and is infallible Holy inspired, authorita- tive source of Christian doctrine and precept. God,

2. That there one is existent in three eternally persons: Father, Son and Holy Ghost. but, created in of God as a result image

3. That man was sin, himself. is to save powerless lost believe on the Lord Jesus 4. That the man is to only hope God, Christ, the son who died to take upon virgin-born mankind, and who rose Himself the the sin of punishment Lord, dead, Him as Savior and by receiving from so man is His blood. redeemed return to in That will earth personally power

5. Jesus Christ and glory. Christ, for That the those who receive

6. indwells Holy Spirit lives. them to live enabling righteous holy 7. That Church is Christ is Body comprised have been all those who belief Christ through spiritually mission of indwelling Holy regenerated by Spirit. and the and dis- evangelization nurturing Church is worldwide of Christians. cipling has a Mission Statement that

Additionally, adopted provides: Regent — Preamble is a institution Regent graduate University Jesus exists to God the Father His Son glory bring Christ the work of the through Holy Spirit. — Mission Our mission graduate provide exemplary leaders education from biblical servant perspectives aspiring and to be a center of Christian leading pivotal professions and action. thought — vision, our and other schol- through Vision Our graduates activities, Christian in transform- arly provide leadership truth, affirming jus- ing society by teaching principles tice and described in the embodied Holy Scriptures, love as Christ, through and enabled the power of Jesus person the Holy Spirit. (“Dr. testified Selig Selig”) Provost Dr. William George these is to: function of statements practical view, that we exist to of world [Regent’s] stage

[s]et[] mission, And that’s our But our to God. bring glory preamble. terms, is an in very provide which out played practical words, education. In other the finest possi- exemplary graduate biblical can from provide perspective ble education we [a] a difference in society. we on and make gowill people hope a from the School which has Divinity Apart specific purpose education, instruction in other schools focuses theological upon traditional with inclusion of biblical where subjects appli- perspective fit, cable. As Dr. “In areas where doesn’t Selig explained: [scripture] we use it it. any don’t or we don’t time about In areas spend talking fits, where it we do. And it’s in world view just consistency so our as to how we behave toward others what does have to scripture say.” 1,850 has stu-

Regent members approximately faculty dents, 289 of are whom enrolled in the The aver- Divinity. School of a age student is age Regent 31. has no specific religious for student admissions. Its requirement admissions criteria include: (1) intellectual achievement and high with minimum scholarship, scores, (2) grade average and test point and/or “maturity spiritual (3) character qualities,” consistent with “[p]ersonal goals mission and goals Regent University.”

Dr. Selig some schools at explained although Regent inquire into “Christian commitment” for the of evaluating ethical or standards, moral the lack of such a “commitment” does not nega- tively an All impact applicant’s standing admission. applicants Recommendation,” to submit a “Clergy as a required both matter policy Among asked is whether the practice. questions has applicant “made commitment to meaningful personal Jesus Dr. Christ.” Selig relevance this information as explained follows:

Well, standards, we’re for moral and ethical looking we — believe that somebody if and it’s not 100 certainly, per- — — cent assured but if has made a has made a somebody commitment, Christian then we’re assuming they’re to live attempting according to tenets of So we scripture. see that as one of information that would be piece helpful. Form,” also must submit a Applicants Life stat- signed “Community ing they must “understand and be receiving committed to education” accordance with Statement Faith. Regent’s so, Although do encouraged to students are not to attend required Regent’s weekly services or corporate chapel participate any par- However, ticular religious activities. must they have “[pjersonal goals consistent the mission and goals Regent University,” and must submit a statement” their “[pjersonal goals addressing how to relate “Christ- Regent’s objectives”

“personal spiritual The that “for instructions explain centered educational philosophy.” Christian, a of for his or is statement faith God’s will goal] [a her life.” students, indicat- unlike are to document

Faculty, required sign to the of Faith.” They “strongly their adherence “Statement ing to The faculty but not attend is encouraged they’re chapel. required” testified, and Selig to “faith and Dr. learning.” required integrate has not inter- and the ABA Statement Faith agree, SACS freedom. detailed academic freedom Regent’s fered academic research, ... by to truth discus- encourages faculty “pursue policy Nonetheless, sion, and other forms of Regent prohibits inquiry.” or from “their classroom as to faculty using platform position to a viewpoint, demand adherence students by personal theological or social The SACS in a review of agenda.” preference political found that “[f]acuity accreditation Regent’s application data, are free to examine all question assumptions, students pertinent research, and teach and by scholarly study be the evidence of guided curriculum, its the substance of a With to given discipline.” respect include in the syllabus each member is faculty required for each of how the Christian faith and Bible “description class be into the course.” will incorporated

B. THE BONDS VIII, Article of the Constitution Virginia provides § that: to, for loans Assembly grants

The General may provide of, on behalf students institutions attending nonprofit or whose pur- education the Commonwealth higher primary or and not to graduate education collegiate pose provide The Gen- or education. training theological provide religious authority for eral also a State Assembly may provide agency for of educational borrowing to assist in construction money institutions, that the Commonwealth provided facilities at such debt created such borrowing. shall not be liable any for the Commonwealth General also Assembly may provide institu- thereof to contract with such subdivision any political services. or other related tions for the of educational provision authorization, Pursuant this constitutional General enacted the Facilities Authority “Educational Assembly Virginia Act.” The General declared in Code 23-30.39 the Assembly public Commonwealth of as follows: Virginia policy It declared that the benefit hereby people Commonwealth, commerce, the increase of their welfare and their health and con- prosperity improvement living it ditions is essential that this and future of generations youth be the fullest to learn and to given their opportunity develop intellectual and mental that it is essential that capacities; insti- for tutions education within the be higher Commonwealth pro- vided with additional means to assist such appropriate youth achieving the levels of and of required learning development their intellectual and mental is the that it capacities; pur- of this to a measure of assistance an pose chapter provide alternative method enable to institutions for education higher to the Commonwealth facilities and structures provide which are needed to the sorely of this accomplish purposes all the benefit to the extent and chapter, public good, manner herein. provided

To out the of the Educational Facilities carry purposes Act, an of the Authority Commonwealth entitled the “Vir agency ginia College was created. its Building Authority” Among powers duties, bonds, bond Authority may “issue the faith and credit of the Commonwealth or of any

pledge subdivision, from the solely but shall be payable political . . from revenues. . The issu- funds herein therefor provided ance under the of this of revenue bonds provisions chapter or the shall not or directly indirectly contingently obligate thereof to or levy Commonwealth or subdivision any political therefor or to make to form of taxation whatever any pledge for their any payment. appropriation Code 23-30.49. the Educational for under

Upon Regent’s participation application Act, reso- VCBA June a the on Authority adopted Facilities for includ- for the benefit of Regent projects lution bonds approving classrooms, administra- containing a in Alexandria new ing campus center on an events a communication and arts complex, tive space, in housing of student the Beach Virginia refinancing campus, bonds. Specifi- financed with tax exempt Beach Virginia previously will be that bond proceeds mandates no the VCBA Resolution cally, used provide: or for sectarian instruction or to be used

(a) used any facility any chapel including as a place religious worship, in connec- used to be used (b) like or any facility primarily school department tion with any part denomination; for particular divinity any used facilities for will not be the Bonds provide proceeds Divinity School. University’s make a it would Regent pro-rata In its application proposed of the Alexandria use of portion contribution equity bonds, in order to the building subject financing by compensate of the the School of by Divinity. Additionally, for use facilities lease out Dr. indicated that “would testimony, Selig space for the elsewhere” and not use bond-financed facilities School if the contribution was not Divinity pro-rata equity proposal approved.

H. STANDARD OF REVIEW matter, At the trial exhibits to be of this both submitted parties court; however, offered only testimony. considered VCBA trial from the bench the conclu- judge immediately The ruled upon sion of evidence of counsel. presentation arguments Thereafter, order, submitted counsel appellee proposed pages detailed of fact and conclusions of law. length, containing findings trial to enter the order judge declined proposed saying:

I didn’t disbelieve witness who was on stand. I any just of the than those witnesses had different facts interpretation all, mean the extent you had facts. I that it helps decision not based on my any credibility findings was It to the witnesses. was based on record. And regard solely Courts will have the same record [appellate] exactly have. I don’t see I have to of fact findings make really why [I] of law. conclusions the . . the why . does Court Supreme Virginia Supreme know I the Court of the United States need to how interpreted I it make to them how law? What difference does interpreted the law? the observations of the trial

Considering our judge upon record, of the “[wjhile examination we conclude the dis parties record, the as to conclusions to agree be drawn from the factual the facts are not in themselves Smyth County Community dispute.” Hosp. 328, Marion, 331, 401, v. Town 259 Va. (2000). 527 S.E.2d The determination of Regent’s eligibility participation under the Educational Facilities Act is a mixed Authority question Therefore, law and fact. we conduct a review of trial court’s of law to the application facts. Cinnamon v. undisputed Int’l Bus. 471, 474, Machines Va. Corp., (1989). 384 S.E.2d HI. ISSUES PRESENTED VCBA contends that trial court erred in validation of denying the bonds for the benefit of It maintains Regent. that extension of the benefits offered the Act under would not Regent violate the Con- stitution of Virginia nor Virginia would it statutory provisions, violate the Establishment Clause of the First Amendment United States Constitution. VCBA asserts that its of bond involves aid in a financing provided neutral fashion to insti- eligible tutions of higher Further, education in the Commonwealth. VCBA maintains that is not a Regent sectarian pervasively institution and sectarian, is, that even if it is this form aid pervasively nonethe- less, permissible. VCBA Additionally, contends that refusal of vali- dation of the bonds for stated reasons amounts to discrimination based upon which is the free recipient’s viewpoint, prohibited by clauses of the United States speech Constitution and Constitution of Virginia. Court urge this the circuit

Appellees uphold court’s denial of validation bonds because they contend that is perva- sively sectarian and its bond financ- participation state-sponsored ing under the Constitution of impermissible and statutes Virginia violates Establishment Clause of the First Amendment to the least, United States Constitution. At the very maintain that appellees be Regent School should not Divinity utilize permitted any financed buildings bonds. assert space Finally, appellees that denial of validation does not free issues. implicate speech of this case our consideration of the posture issues requires ain order. must precise We first consider whether validation of VIII, the bonds would violate the Act or the of Article provisions Second, of Virginia. Constitution we must consider §11 whether the Establishment Clause of the First Amendment to the I, 16 of the Constitution and/or Article States Constitution § United we the validated. if Only if bonds were of would be violated Virginia the Act of provisions of the or the various determine that violation consider the has occurred do we question Virginia Constitution based discrimination. of free speech rights viewpoint violation upon IV. OF ISSUES ANALYSIS STATE VUI, the the Article 11 of Constitution Both Act and § that to institutions “whose primary state aid is Virginia permitted or education and not collegiate graduate pro is to provide purpose Const, VUI, Va. art. education.” theological vide or religious training §11, was 23-30.41(e). finding Code In addition to Regent per § sectarian, could the trial court held that it not validate vasively “a because had Regent primary religious training,” bonds purpose which would violate the Act constitutional Virginia provisions. that, from concerns concede candidly particular Appellees apart contend that is such Divinity, they about School of do not Regent an institution. In their brief state: appellees otherwise, the trial court found did not

Although Appellees here, contend court below and do not contend is such an institution. The contention Regent only Appellees’ VIII, that involves Article to Regent’s pertains proposal § of a rata contribution for the Divinity pro compensate School’s use of the bond-financed buildings. Accordingly, of whether bonds can be issued turns on general question whether the issuance would violate the federal Establishment Constitution, and the Clause of the Virginia parallel provision I, 16. Article concession, court, nonetheless, the trial made

Despite appellees’ these we must review them.2 findings As more we find that Regent, this fully developed opinion, However, this in both sectarian. pervasively policy practice, its In conclusion does not resolve question primary purpose. issue, validate constitutional and statutory order to the bond state institution must be whose provisions require “primary is to or education and not to collegiate graduate provide pro- or before us that use of the Act By contrast, (§ 23-30.41(b)) the trial court did not and the Resolution. proposed facilities address and the would involve Accordingly, parties we did “sectarian do not not argue address instruction” the court below this issue. contrary vide religious training theological education.” With exception School, we are Divinity satisfied that Regent meets requirement.

Definition phrase “religious training theological education” must our precede analysis primary purpose. Report of Commission on Constitutional Revisions (“Report”) observed that “a theological would not seminary for inclu qualify” sion but stated that “those among colleges universities which would the section no makes distinction qualify, between those which are church-related and those which are not. Many col private church-related, in leges Virginia but like typically they operate other any college.” Commission on Report Constitutional Revision, 1969, 274. p.

Of in our the particular the help interpretation meaning of “religious training or phrase theological education” is Report’s reference to Public Views Document is a 100 which “Memorandum to Commission on Constitutional Revision” from the Association of The Independent Colleges. cites to that Report specifically portion the Memorandum which states:

The does Association not advocate state aid for the promo- tion of theological or training education. a religious Clearly, and its seminary students should be barred state from aid. Under the federal Higher Education Facilities Act of distinction is made between a church related and an college institution or one of its whose is departments function primary educating students vocations. See religious 20 U.S.C.A. for 751(a)(2). This distinction is the difference between an insti- tution whose service is to state and primary community and one whose service is primary to or denomina- religious tional group, (emphasis supplied).

Public Views Document 6.p. Based on the document and language Report Revision, on Commission Constitutional we interpret phrase be education” to or other insti “theological seminary applicable tution whose is students for vocations associated purpose prepare ordination, rabbi, contrast, with such we as minister priest. By “religious to be to institu interpret phrase training” applicable within is tions institutions whose departments purpose preparation students for than those religious vocations other associated or direc- include missionary other vocations would ordination. Such case, is In function “primary education. either tor of religious vocations.”3 educating students Divinity, primary of the School of With exception is students for sec programs of Regent’s graduate preparing have institution Although may multiple purposes, ular vocations. Webster’s it one “primary purpose.” definition can have by only (1993) defines as Dictionary Third New International “primary” of time or Id. 1800. “first order development.” such degrees subjects offers over 20 different Regent graduate law, business, education, journalism, psychology. as to award the master’s doctor’s degrees. accredited SACS accreditation, noted that: Regent’s In SACS reaffirming a well-documented con- demonstrates Regent University cern for academic freedom assuring provid- promoting ing faculty members. security faculty professional want no one learning, attempts faith into but integrate dictate to them how this to be done. data, all students are free to examine

Faculty pertinent be the evidence of assumptions, guided by scholarly question research, and teach and of a disci- given substance study of aca- supportive All units seem to pline. very open freedom, it, demic one unit as “sacred viewing as explains, trust.” accreditation permits

The ABA accredited the law school such 50 its to to law in all states. graduates for licensure apply practice The no of academic freedom. ABA also found inhibition Regent’s

The illustration of Regent’s law school at Regent provides good are take courses in First students to year required primary purpose. Contracts, Procedure, Law, Torts, Research and Common Civil Legal proposed adoption cation.” persuaded does not § “religious 11 of the ^[3] At the Id. detract education that the conclusion Constitution at 13. We from the of interchangeable of are theological Public specific interpretation mindful Virginia utilizing Views Document language training” usage of the Public which “training” in the phrases Views Document 100 also utilized the phrase 100, was body the Association of incorporated “religious of its memorandum. “education” Act and the training into the Act Independent in the memorandum Constitution. or Id. theological at 6. We Art. Colleges phrase VHI, edu

626 Writing, Students are to the same core curricu- Property. exposed lum that the first year law school in permeates any country. have an idealized

Regent may mission God “glorifying Son, However, and His Christ.” Jesus does precatory language not reveal the institutional In all primary purpose. practical aspects, Regent is institution that graduate teaches various secular subjects from a religious in under the Act viewpoint. prohibition question and the Virginia Constitution of does not of other proscribe teaching wise secular from a religious subjects viewpoint. that, School,

We hold with the exception Divinity Regent is institution “whose is to col primary purpose provide legiate or graduate education and not to provide religious training theological education.”4

In addition to concerns particular about use the bond-funded by I, facilities the School of Divinity5, maintain that Article appellees 16 of the Constitution refer as a Virginia, § which to they “paral- Clause, lel provision” to federal Establishment is violated and Auth., 96, that our in Habel v. Indus. Dev. Va. prior holding 241 400 (1991) S.E.2d (Liberty 516 University is sectarian and its pervasively in industrial bond participation financing violates Establishment I, Clause and Article 16 of the Constitution must be Virginia) § be invalidate conduit bonds applied issued to proposed I, Regent. are correct to characterize Article 16 Appellees § Constitution of as a Virginia to the Establish- “parallel provision” ment Clause for we have been always informed United States Court Establishment Clause our Supreme in construc- jurisprudence I, tion of Article 16.

Because Establishment Clause ever- is landscape we not hesitated to changing, have reconsider interpretation prior 171, our own Constitution. We noted Miller v. 214 Va. Ayres, 198 (1973)(“Miller S.E.2d II”), 634 that the United States Supreme Court had decided ten cases state of financial aid involving programs 251, educational since Miller 213 private Ayres, institutions v. Va. II, I”). S.E.2d (1972)(“Miller See Miller 214 Va. at hesitation, S.E.2d at We 641. stated without new deci- “[t]hese whose in students to work in a 5 These concerns are order The fact that the department, “primary purpose” to determine the it must be viewed in that context nonclinical M.A. church/ministry separately primary purpose addressed herein. setting training. degree of does This the School of not transform that School degree along of Counseling. Counseling particular various course only is one of designed school several offerings into train one

627 Id. Similarly, our earlier holding.” a reexamination of sions require the United by Clause cases decided the multitude of Establishment of reexamination that prior Habel require Court since States Supreme Clause require- of current Establishment As our holding. analysis reveals, bond in the VCBA ments Regent’s participation vio- does not similarly Clause does not violate the Establishment I, Virginia. 16 of the Constitution of late Article CLAUSE6

V. ESTABLISHMENT A. THE STANDARD on the the United subject, In its most recent pronouncement once the uncertain acknowledged States Court again Supreme Establishment of Clause jurisprudence. its ever-changing landscape Clause of the First Amendment dictates Establishment make law an establishment respecting shall no “Congress Bd. In 50 since Everson Educ. religion.” the over years [v. al., 1 (1947)], et U.S. we have Township Ewing, 330 these words the con- consistently struggled apply simple text aid As we admitted schools. governmental Richardson, 672, 790, in Tilton v. 403 U.S. 29 L.Ed.2d 91 (1971), acknowledgment S.Ct. 2091 “candor compels we can the boundaries of only dimly gov- perceive permissible at ernment sensitive area.” 403 U.S. 678 (plu- activity L, (White, see 403 U.S. 671 rality concurring opinion); judgment). Helms, U.S. _, _, (2000) S.Ct. 2540

Mitchell v. (plurality opinion). cases entire Clause

Review of the of Establishment panoply case of these often in a because adjudication is unhelpful particular they the context in which issues dependent upon sensitive Court in v. Justice observations for the Burger’s raised. Chief Walz Comm’n, (1970), remain true today: Tax 397 U.S. 664 First Free Exercise Clauses of the

The Establishment and drawn Amendment are not most precisely portions of the absolute sweep prohibitions Constitution. The herein. financing Our Establishment Clause analysis of facilities be used School does not Divinity. include consideration This question analyzed proposed separately bond calculated; Clauses have been but the

Religion may purpose was to state an not to In objective, write a statute. attempting Clauses, to articulate the of the two the Court’s scope Religion inherent reflect the limitations opinions general formulating aon basis. The case-by-case considerable internal principles what, of the inconsistency Court derives from opinions have been retrospect, too utterances may sweeping on of these clauses aspects that seemed clear in relation the but particular cases have limited as general meaning principles. Id. at 668. Kurtzman,

In (1971), Lemon v. 403 U.S. 602 the Court recited its well Establishment known test for Clause three-pronged “First, analysis: the statute must have secular legislative purpose; second, its or effect must be one principal primary that neither advances nor inhibits religion; statute must not ‘an finally, foster ” excessive government with Id. at entanglement religion.’ 612-13 Thereafter, Felton, (citations omitted). v. 521 U.S. 203 Agostini (1997), the Court reaffirmed the used general to determine principles whether aid government violates the Establishment Clause. After determination Agostini, analysis still “whether the requires gov ernment acted advancing inhibiting religion” aid “whether the has the ‘effect’ of advancing or inhibiting relig ion.” Id. at 222-23. analysis of excessive Merging government entanglement into effect” the Court stated: “primary analysis, issue, however, Regardless of how we have characterized the the factors we use to assess an whether entanglement “excessive” are similar we factors used to examine is, “effect.” That to assess we have entanglement, looked to “the character and institutions are bene- purposes fited, the nature aid that the State and the provides, resulting between the relationship government authority.” Lemon, 615).

Id. at 232 U.S. (quoting 403 at Recent cases involve claims action rarely governmental after purposefully advancing religion; consequently, Agostini, focus of Establishment Clause will most often be analysis upon effect” test. In that articulated “primary regard, Court three crite used ria to determine whether aid is “it government permissible: indoctrination; not does result in define its governmental recipients reference to an at religion; create excessive Id. entanglement.”

629 whether the govern 234. a determination Finally, Agostini requires Agostini, ment aid constitutes an “endorsement religion.” Mitchell, at _, S.Ct. at 530 U.S. U.S. at 235. See also J., (O’Connor, concurring). Felton, decision in v. 473 U.S. Aguilar overruled

Agostini prior (Title I the same (1985), involving government program not only 1965), Education Act of but of the Elementary Secondary later revisited years the same case which it some upon involving to Federal relief Rule from petition seeking injunction pursuant Court in characterized the schools 60(b)(5). receiving Aguilar reconsideration aid sectarian.” Id. 411-12. Upon as “pervasively case, the character of the aid involved the Court focused upon could be “use of that aid to indoctrinate attrib- religion whether uted U.S. at that “we Agostini, Declaring to the State.” 230. have from the . . that all aid that government rule . departed directly invalid,” assists the educational function schools id. 225, that aid to sec- government the Court acknowledged pervasively tarian schools had been approved: previously that all eligible have sustained aid to provided programs

[W]e See, where school. they e.g., children attended regardless 1, Ewing, Everson v. Board Ed. 330 U.S. 16-18 all local ordinance (1947)(sustaining authorizing parents from their state tax returns the costs of transporting deduct buses); Ed. their children to school on Board Cen public Allen, 236, 243-244 tral Dist. No. 1 v. 392 U.S. School textbooks New York law secular (1968)(sustaining loaning 388, Allen, children); 463 U.S. all Mueller v. 398-399 all Minnesota statute (1983)(sustaining allowing parents tuition, textbooks, and deduct actual costs of transportation returns); tax Servs. Washington Dept. from state Witters [v. Blind, 481, Washington 474 U.S. (1986)](sustaining 487-88 assistance); law all blind vocational eligible persons granting 1, Dist., Sch. 509 U.S. Zobrest Catalina Foothills [v. IDEA all “disabled” (1993)] section of (sustaining providing aid). children with necessary aid to perva-

Id. at 231. Of course in the Court Agostini, approved schools teachers to pro- sectarian school sively by permitting public vide education to children disadvantaged parochial remedial schools. review, it would Agostini removed

Upon cursory appear from consideration the sectarian nature of analysis pervasively the institution aid. The in Mitchell receiving government plurality so certainly when it said: thought

One of the dissent’s factors deserves mention: special whether (or a school aid) that receives aid whose receive students sectarian. The dissent is correct that there was a pervasively mattered, when this factor if the period particularly pervasively sectarian school was a secondary school. But primary is one that the should it period regret, Court is thankfully long past.

Mitchell, at _, However, 530 U.S. 120 S.Ct. at 2550. without fifth vote command majority, obituary analysis plurality’s sectarianism be pervasive concurrence of Jus may premature. O’Connor, tice joined by Justice the considera Breyer, suggests nature, tion anof institution’s sectarian limited pervasively although remains impact, appropriate. Mitchell involved to a aid challenge school described as a “close to the cousin” at issue in 521 U.S. at provision Agostini, _, 120 S.Ct. at 2537. 2 of the Education Consolidation and Chapter 97-35, 469, amended, Act of Pub. Improvement L. 95 Stat. as 7301-7373, 20 U.S.C. among other aid for certain things, §§ provides Mitchell, _, instructional and educational materials. 530 U.S. at 120 S.Ct. at 2537. Federal funds are to state and local edu provided which, cational agencies from both upon application public pri schools, vate materials and loans them to the purchases requested at _, Id. institution. 120 S.Ct. at 2537. In Par requesting Jefferson ish, Louisiana, schools, religious schools character private including sectarian, ized the court district as by pervasively participated at _, See program aid. id. 120 S.Ct. at government 2538. In Mitchell a of six aid to majority justices schools approved sectarian. The reaf- indisputably pervasively plurality opinion and, the firmed refinement to the Lemon test the Agostini because secular excessive entan- program any government were glement entirely not focused subject controversy, upon the two criteria of the “effect” test: whether the remaining Agostini indoctrination, results in and whether it governmental defines its reference to by religion. recipients effect of advancing have “the that the aid did not

Concluding stated, in govern not result does religion,” plurality “[the aid] neu indoctrination, for aid it determines eligibility because mental choices parents that aid based on private allocates trally, schoolchildren, that has an impermissible and does not aid provide reference to its recipients by does define program] content. Nor [the “the _, at 2552. For plurality, Id. at S.Ct. religion.” on a focus by views religious required into the recipient’s inquiry but only unnecessary sectarian is not whether school is pervasively at _, 120 S.Ct. at 2551. also offensive.” Id. O’Connor, Agostini,

Justice the author of majority opinion but wrote because concurred in the result of Mitchell separately for the evaluation was “of breadth unprecedented plurality opinion school-aid challenges government pro Establishment Clause J., at _, (O’Connor, concurring). Id. 120 S.Ct. grams.” her with the Justice O’Connor concerns Summarizing plurality, stated: essentials,

Reduced rule states govern- to its plurality’s have the effect of ment aid to schools does not religious aid is offered on a neutral so as the advancing religion long also and the aid is secular in content. The plurality basis aid, and indirect the distinction between direct rejects that the actual of secular aid religious holds diversion mission is religious school to the advancement of its permissible.

Id. choices, and secular of neutrality,

Noting importance private content, con- factors must be Justice O’Connor other emphasized factors of school aid These sidered in evaluation programs. curricula, whether include the aid is to regular whether supplemental coffers, the aid is actu- school’s whether state funds reach religious activities, the aid constitutes diverted to whether ally endorsement of religion. announce- never directly plurality’s

Although responding the concurring analysis,” ment of the death of sectarian “pervasively are still alive. Justice makes it clear that such concerns opinion O’Connor states: that actual diver- with the conclusion

I also disagree plurality’s indoctrination is consistent aid to religious sion government . . decisions “provide with the Establishment Clause. . [0]ur 632

no the use of to precedent funds finance public . . activities.” . diversion constitutionally [A]ctual impermissible. at _, omitted). (citations

Id. 120 at S.Ct. 2558 In the context of her concerns over actual diversion of govern ment aid to Justice O’Connor cites religious activity, Jus favorably Kendrick, tice in v. 487 Kennedy’s concurring Bowen U.S. opinion (1988), 589 where the remand to the court district as explained follows: “The of further whether only purpose any inquiring particu lar institution is is as a grantee sectarian pervasively preliminary step to that the in used being funds are fact to further demonstrating relig Mitchell, at _, J., ion.” U.S. at (O’Connor, 530 120 S.Ct. 2558 Bowen, J., 487 624 concurring) U.S. at (citing (Kennedy, concurring)). the United States Court

Clearly, has Supreme approved See, some forms to of aid pervasively sectarian institutions. e.g., Mitchell, U.S. _, 120 2556 S.Ct. funds distributed (upholding the federal to state and local government governmental agencies, which turn lend educational materials and public equipment schools, private schools), U.S. at including parochial Agostini, 521 234-35 funded (upholding federally program providing supplemen tal, remedial instruction by school teachers to disadvantaged public Zobrest, schools), children at parochial 509 U.S. (upholding state-funded furnished a disabled sign-language interpreter being Witters, school), child enrolled in a 474 U.S. at sectarian pervasively 488-89 law all blind (sustaining Washington granting eligible persons vocational assistance and use of grant money permitting Mueller, at a Bible U.S. Minne college), (sustaining at 398-99 tuition, sota statute all to deduct actual costs of text allowing parents books, return, from state tax transportation including expenses schools), associated with their attendance at parochial children’s Allen, 392 at 243-44 York law secular loaning U.S. New (sustaining children, schools), textbooks all children including parochial Everson, 330 U.S. at local authoriz 16-18 (sustaining ordinance all to deduct on their state tax returns the costs of trans ing parents buses). their on children schools porting public private public Zobrest, Witters, Mitchell, aid in governmental Agostini, Mueller, schools. Allen and Everson involved sectarian pervasively cases, of the In of the that was these it was nature aid dispositive Establishment the nature institution. Upon Clause not question, consideration of and concurring opinions Agostini, plurality above, that both Mitchell, we conclude cases cited and the several that aid receiving the nature of the institution the aid and nature of to determine whether and balanced considered must be appropriately aid a school program. Clause prohibits particular the Establishment McNair, test, Hunt v. it is to examine In helpful applying before us. In to the case (1973), a case similar remarkably U.S. 734 Hunt, a to the challenge Court entertained the United States Supreme Act.7 The Authority legislative South Carolina Educational Facilities “ ‘to assist institutions for the Carolina statute was South construction, refinancing in the financing education higher ” revenue bonds.’ 413 . the issuance of through . . projects primarily 1971)). The Code Ann. 22-41.4 (Supp. U.S. at 736 S.C. (quoting § Act, that the bonds like Virginia’s, South Carolina explicitly provided at of the or See id. indirectly. shall not be state obligations directly 1971)). As in Vir- S.C. Code Ann. 22-41.10 (quoting (Supp. § revenues of South Carolina was used none of the ginia, general See id. at 738. support particular project. Powell, Hunt, charac-

Justice for the Court in writing succinctly terized the nature of the aid afforded the college: through educational institutions advantage financing from relevant of fed- authority

state-created derives provisions eral and South Carolina state income tax laws which provide in effect that the interest on such bonds is not subject income taxation. The status of the interest income-tax-exempt State, as an Authority, instrumentality enables at a rate of interest than market the bonds lower significantly if the educational institution would be forced to it bor- pay financing. rowed the conventional money by private omitted). (footnote Id. at 738-39 Lemon, test articulated

Considering three-pronged of the statute is manifestly Court in Hunt found that “purpose Also, secular one.” Id. at 741. the Court concluded periodic use of the facilities to ensure with restrictive inspection compliance did entanglement religion. not threaten excessive governmental the Lemon See id. at In consideration of the second prong 745-49. test, Court, Tilton, “[wjhatever its noted: bemay citing Walz initial that the Clause Establishment proposition prohibits appeal, with a reli- which in some manner aids an institution any program S.C. Code Ann. 22-41, an Act similar to Virginia’s Educational Facilities Authority Act. Hunt, affiliation has been at gious consistently 413 U.S. rejected.” 742-43. case, review the

Upon record in that the Court sparse observed that there was “no basis conclude that the are College’s operations oriented towards sectarian rather than educa- significantly secular stated, tion.” Id. at 744. The Court “we further satisfied will implementation not have effect of proposal primary Id. at 745. state- advancing inhibiting religion.” to that Appended test,” ment the end of the discussion of the effect “primary Court declined to address the issue specifically very presented case before Id. at us 745 n.7. today. seven,

In footnote the Court that even if an suggested institution sectarian, the aid in be pervasively so question may unique of the aid does not “the result in provision effect” primary advancing religion. The footnote its as inhibiting states entirety follows:

The “state aid” involved in a this case is of very sort. special funds, We have here no expenditure either public by grant loan, or no reimbursement a State for made expenditures by school or parochial college, no extending committing Rather, consists, of a State’s credit. state aid only not financial assistance which directly indirectly would impli- credit, cate funds or but the creation of an public instrumental- (the ity which educational Authority) through may institutions borrow funds on the credit basis their own and the security of their own more favorable interest upon terms than property otherwise would be available. Court The of New Supreme characterized the assistance an Jersey rendered educational act institution under an to the similar South Carolina generally Act as being service.” v. merely “governmental Clayton Kervick, 523, 503, 530-531, (1970). 56 N.J. 267 A.2d 506-507 below, Court, The South in the Carolina Supreme opinion described the role of the State of a “mere as that conduit.” McNair, 97, 107, 645, v. 258 S.C. 187 S.E.2d 650 [Hunt (1972), U.S. aff’d, (1973)]. Because we conclude that of the effect assistance afforded here is neither primary Tilton, advance nor to inhibit Lemon and we under religion whether, need not decide as Brief for argue, appellees Appel- 14, lees the tax South Car- exemption importance olina scheme under v. Tax brings case present Walz a local Comm’n, this Court (1970), upheld where 397 U.S. institutions. religious which included tax property exemption Id. at 745. Walz, an injunc- real in New York sought

In an owner of estate the New York Tax Commission City tion in state court to prevent to religious organizations from tax granting exemptions property The See 397 U.S. at 666. used solely religious worship. properties that the of a tax exemption essence of the was grant complaint to make a contribution church indirectly required taxpayers property violated the Establishment Clause. thereby bodies id. at See 667. tax legislative property

Concluding the inhibition of was “neither the advancement nor relig- exemption ion; id. at the Court neither nor hostility,” sponsorship [and] stated: to churches necessarily tax

Granting exemptions operates an indirect economic benefit and also rise to gives to afford some, lesser, but involvement than them. In ana- taxing yet either alternative the are whether involve- lyzing questions excessive, it ment is and whether is a one continuing calling for official and surveillance continuing leading impermis- a direct sub- money sible degree entanglement. Obviously would be a with involvement. sidy relationship pregnant

* * * a tax is not since grant exemption sponsorship not revenue to churches does transfer of its government part but abstains from that the church demanding support simply is tax state. . . . There no nexus between genuine exemp- tion and . . . The creates establishment religion. exemption and remote between church and a minimal involvement only state and far less than taxation of churches. and fire to

Id. at 674-75. protection Comparing provision police status, noted that: of tax the Court granting exempt buses can to carry police- But if as in Everson be provided men church school we fail see how to protect pupils, to all broader and fire range given equally police protection churches, with art galleries, along nonprofit hospitals, 636

libraries the same different for receiving tax is exemption, pur- of the Clauses. poses Religion

Id. at 671. us,

In the case before do contend and not we do appellees not find VCBA that the act with the of advanc purports ing inhibiting or that the bond results in religion, exces program Mitchell, sive Agostini as in we entanglement. Consequently, indoctrination, must whether consider the aid results governmental whether of the aid are defined reference recipients by religion, whether the aid an government constitutes endorsement Hunt, Court determine religion. As the did in we must first whether is sectarian. If Regent is sectarian pervasively pervasively Mitchell, then, considering Agostini, and a host of other fact-specific cases, we determine must whether nature of the is aid unique nonetheless without the Establishment Clause. permitted offending

B. IS REGENT PERVASIVELY SECTARIAN? an Assessment whether institution is sectar pervasively institution, ian8 consideration of “a of the general requires picture Works, Roemer v. Bd Pub. many elements.” 426 composed (1976). U.S. 758 Court has relied Although on Supreme determination, several common factors in no one making distinct formula has In emerged.9 identifying characteristics a pervasively 8 phrase “pervasively sectarian” first was utilized in Hunt. “Pervasive” describes that “pervades pervade.” (10th which Collegiate Dictionary or tends to Merriam-Webster’s 868 ed. 1999). throughout every part “Pervade” defined as “diffused of.” Id. “Sectarian” means “of, to, relating Among or characteristic of a sect.” Id. at 1056. definitions of “sect” are religious adhering group “a and “a denomination” to a distinctive doctrine or leader.” Id. 9 Clarke, 1998), denied, (4th In Columbia Coll. v. F.3d 151 cert. Union 159 Cir. 527 U.S. (1999), Appeals the United States Court of for the Fourth Circuit held that the District summary judgment subject college pervasively Court’s on that the was conclusion sectarian incomplete rested on record and that the District Court failed to consider the facts it before light college. analysis, majority to the its most favorable In court identified general inquiry encompassing pervasively college four areas of the characteristics of a sectarian Roemer, Tilton, “(1) by Supreme college as identified Court in and Hunt: does the mandate curriculum, (2) religious worship, religious to what extent do influences dominate academic (3) religious college’s hiring preferences faculty shape how much do and student admission processes, (4) degree college enjoy autonomy’ apart what does the ‘institutional from Union, Roemer, (citing it church with which is affiliated.” Columbia F.3d at 163 Hunt, Tilton, 755-58; 743-44; 685-86). U.S. at 413 U.S. at 403 U.S. at The court noted that dispositive.” none of “in isolation at The dissent these factors 159 F.3d 163. summarized categories differently, noting given to: these must be consideration [Tjhe religious which the is affiliated or controlled extent to institution Hunt, church, 755; 743; [Roemer, 413 U.S. at whether indoc- U.S.] see

637 institution, (1) the Court has whether the insti sectarian considered: tution is affiliated with a church and the amount of institu formally tional from church which affili it it is autonomy enjoys apart ated;10 (2) whether one of the of the institution is the purposes indoctrination of and whether the institution’s activities religion reflect or exert such influence over dominating religious purpose curriculum; 11 institution (3) academic an whether reflects freedom;12 (4) academic institution’s on atmosphere policy other classroom or evidence of into prayer religion entering elements instruction;13 (5) classroom existence utilization of relig admission;14 ious or student qualifications faculty membership (6) of the student religious composition population faculty.15

Our examination of Regent the Establishment pursuant I, Clause and Article 16 of the Constitution of Virginia requires consideration of whether the institution is sectarian. pervasively (with While Regent of the School of not exception Divinity) may have education, of religious or primary purpose training theological consideration of the upon factors utilized to determine an whether sectarian, institution is pervasively Regent we hold that is such an institution. The lengthy in this description Regent opinion amply this conclusively supports determination.

C. REGENT’S IN PARTICIPATION THE BOND

FINANCING PROGRAM Having established that is a sectarian institu- pervasively tion, we must it consider whether nonetheless is permitted partici- in the VCBA bond pate without program offending Establishment Clause. We turn remaining interrelated questions unique indoctrination, case: whether the aid results in government whether Columbia ^{[13] [10] [11] [12]} 426 U.S. at ^[413] trination school ious See, See, See, See, See, See, institution U.S. qualifications e.g., e.g., e.g., e.g., e.g., e.g., Union, is characterized is one at 743-44; 426 U.S. Roemer, Roemer, Roemer, Roemer, Roemer, Roemer, Hunt, 757-58; 159 F.3d encourages of the institution’s 426 U.S. 426 U.S. at 426 U.S. 426 U.S. 426 U.S. at and the faculty at ^{[174] [413]} requires atmosphere at at at at (Wilkinson, hiring U.S. Hunt, 756-57. 757-58; 757; Hunt, 755; 755; Tilton, 756; purposes, at prayer, Tilton, makeup 744. Hunt, student C.J., 413 U.S. 413 U.S. academic see 403 U.S. at 686-87. ^[403] see id. dissenting). Roemer, admissions, U.S. U.S. at at 756-57; at at freedom, student at 686. 743-44. 743; 426 U.S. 744; Tilton, see id. Tilton, population, whether there are see at id. at 403 U.S. at 686. at 755; 757-58; 403 U.S. 756; see whether Roemer, whether Hunt, relig- 686. the aid its reference to recipients by religion, defines program the aid an endorsement of religion. whether constitutes at the outset the nature distinguish

It is important unique aid involved in the VCBA bond governmental program. investors, are of Because the bond the funds private proceeds bond are not aid received institution. governmental proceeds or to a directly indirectly partici No dollars are transferred taxpayer No are or utilized as pledged institution. dollars pating taxpayer for bond the aid reviewed in obligations. programs Unlike surety that define Clause of cases Establishment many jurisprudence, there is no utilized for construction or mainte government money bus for reimburse buildings, transportation, nance of of provision of teachers on or off ment of educational pri expenses, provision for the of vate school books materials premises, provision kind. any and, aid not involve funds governmental

The does usage used, have the traditional in which the terms been terms sense aid” The “direct aid” or Court “indirect simply inapplicable. footnote of its opinion difference in seven acknowledged unique The of this aid is defined as the granting Hunt. nature properly tax status the bonds which has incidental result exempt per a borrow at an interest rate institution to funds mitting qualifying South Carolina financing. lower than conventional The private 650, Hunt, Court characterized the role of S.E.2d Supreme conduit”, Court in the state as a “mere and the New Jersey Supreme case called the bond service.” “governmental similar provisions (N.J. 1970). 267 A.2d at 507 Clayton, is available to all institutions qualifying Commonwealth, without regard education in higher religious to undertake affiliation. There is no “financial incentive religious aid because: indoctrination” in the of this provision unique the aid is allocated on incentive is not . . where This present. neutral, that neither favor nor disfa- the basis of secular criteria and secu- made to both religious vor and is available religion, Under such cir- nondiscriminatory basis. lar beneficiaries on cumstances, effect to have the the aid is less likely advancing religion. Vincent, at 231. See v. 454 U.S.

Agostini, U.S. Widmar (1981).

It be that an rate or tax cannot interest disputed exemption has content. Because funds flow government secular no exclusively it be said that funds are utilized for Regent, cannot government indoctrination of belief or that there diversion of govern ment funds for or that funds are uti religious activity government lized for or otherwise. any programs, “supplemental” receives these funds because of

Additionally, Regent genuinely choices of investors. Only independent purchase If no money private investors flows to investors Regent. private purchase bonds issued on behalf of no funds flow to Regent, Regent. such bond Thirty-five issues bond issue on preceded proposed behalf An investor’s Regent. choice between VCBA bond issues or between VCBA bonds and other is a securities choice presumably event, based market factors circumstances. In upon personal any such a choice “cannot be attributed to state decision making.” Zobrest, 10; Witters, at 509 U.S. see also U.S. 474 at As Justice 493. O’Connor stated in Mitchell: government aid a school’s mission supports religious

[W]hen of because made only decisions numerous independent by school, individuals to their guide secular aid to that “no rea- is likely sonable observer to draw from the facts ... infer- ence that the State itself is endorsing religious practice Witters, J., (O’CONNOR, belief.” at supra, 493 in concurring Rather, and in of part concurring judgment). endorsement the message is attributed to the individuals reasonably who select the the of aid. path at _, (O’Connor,

530 120 U.S. S.Ct. J. 2559 concurring). The issuance of VCBA bonds on behalf of not Regent does result in it governmental indoctrination because determines eligibility for aid Any funds that receives are the neutrally. from Regent private of choices investors. The aid has gov no content. No impermissible ernment funds ever reach Regent’s coffers. No funds are government used or and “this pledged any carefully constrained purpose pro gram also cannot be reasonably viewed as an endorsement of relig that, ion.” U.S. at 235. Agostini, 521 We hold with the of exception the School of Divinity, the VCBA allowing Regent’s participation bond does financing not offend the Establishment Clause. program

640 FREE SPEECH

VI. find bond Because we that inclusion of VCBA Regent under the Act the Constitution financing permissible program further, Clause not that the Establishment does Virginia pre free it is not to resolve the necessary clude Regent’s participation, Rector & by Rosenberger issues raised See v. Authority. speech (1995); U.S. Virginia, Visitors Univ. Columbia Union F.3d 151. VII. THE DIVINITY SCHOOL we that Regent’s hold Although general participation I, not violate Article 16 of the Constitu VCBA bond does § VIII, we find the of Article tion Virginia, specific language § terms of the Act use of bond-financed facili specific prohibit states ties the School of constitutional by Divinity. provision aid not be for facilities “to may given provide pertinent part education.” religious training theological the bond the VCBA Resolution Additionally, approving no used to facili issue mandates that bond will be proceeds provide Given the mission acknowledged ties the School Divinity. we find that it would violate Divinity, of the School VIII, 11, as well as the VCBA Resolution to allow Act Article § School Divinity. use of bond-financed facilities by Regent issue, Dr. Selig the trial court never reached Although make a contribution for Regent por proposed pro-rata equity utilized If Divinity. of the Alexandria the School of building tion Dr. contribution proved unacceptable, Selig proffered pro-rata equity out We need not con “would lease elsewhere.” space contribution violates proposal sider whether pro-rata equity VIII, that the Act or because we find terms Article Resolution, do for it. Pursuant VCBA Resolution not provide be the by bond-financed facilities not utilized School may Divinity.

VIII. CONCLUSION hold that Divinity, the we the School exception With does not financing in VCBA bond program inclusion of the Regent Act, or the Establishment Virginia, violate the Constitution VIII, Act 11 and terms Clause. hold that Article § We the School by of bond-financed facilities utilization prohibit that not Divinity and the VCBA Resolution does for provide pro-rata Divinity. contribution for use equity by School We will reverse the order of trial refusing court validation the bonds and remand for of an order the bonds con- entry validating sistent with this opinion.

Reversed remanded. KOONTZ, JUSTICE with whom JUSTICE KEENAN concur- joins, in in ring part dissenting part.

Beyond question, is a Regent University nonprofit “private Christian university” benefits the of this Commonwealth people them by to learn and to providing opportunity their intel- develop 23-30.39, lectual capacities, Code accredited through eight § colleges However, offering twenty graduate degrees. of the educa- quality tional is not issue here. experience provided Regent

While Regent rightfully enjoys educational excel- reputation lence, the record demonstrates that Regent seeks to educate its stu- in dents strict with its Mission conformity Statement. adopted Statement, to this to According Regent bring “exists to God glory the Father and His Son Jesus Christ the work of the Holy through to ... education Spirit[,] provide graduate from bibli- exemplary [, cal servant perspectives aspiring leaders pivotal professions” to be a leading “center of Christian and action.” thought and] Indeed, as noted was majority opinion, Regent founded to “train mature men and women for challenge representing Christ their “to recover the professions,” incorporated Christian nation,” heritage of our and has the “ultimate purpose” “glorify[] Son, God Jesus Christ.” His Regent concludes sectarian majority pervasively that,

institution the reasons stated in the majority’s opinion, the use of bond-financed facilities by School of Regent’s Divinity I concur in prohibited. these conclusions. however,

I with the conclusion disagree, majority’s otherwise in the revenue participate bond under qualifies consideration as an institution of higher education “whose primary is . .. not to educa- provide religious training theological (e). tion.” My Code 23-30.41 conclusion to is based contrary on First, review, three factors. misstates the standard of majority thereby fails the law to the evidence viewed in apply light 642 and

most the other Lynn prevailing parties favorable to appellees, Second, of statutory established rules trial. violates majority 23-30.41(e), deter- and rewrites Code effectively by construction “a educational institution that the statutory phrase mining nonprofit . . . is . . . not to religious training whose primary purpose provide can education” be limited to institutions departments theological that voca- specific religious within institutions students prepare Third, the tions. bases its definition majority statutory phrase on source that are taken out of context. materials I that eligible par- the issue whether

Initially, agree in the under the Educational Facili- revenue bond ticipation program -30.58, Act, is a through ties Code mixed Authority 23-30.39 §§ However, to the conclusion contrary of law fact. question that certain material facts reached record reveals by majority, Thus, we deference the fac- are in dispute. compelled give and, tual of the trial court which as fact finder inso- findings “sat conflict, and all far as the evidence is in we view facts reasonable raised the evidence in the most favorable to light inferences by [the whether the trial court correctly consider prevailing party] Co., Va. the law thereto.” v. F. W. Woolworth 234 Carmody applied 128, 198, 201, (1987); 361 Bassett Furniture v. McReyn- S.E.2d olds, 897, 899, (1976). Va. 224 S.E.2d fact, mixed law and the determination

As question factual issues for trial court’s Regent’s primary purpose presented by There was clear conflict in the evidence presented consideration. VCBA, between the content of the numerous exhibits namely, Dr. William George Selig. the trial Provost testimony Regent Dr. testi- the exhibits were in conflict with Many facially Selig’s conflict its the VCBA against by The trial court resolved mony. training. is religious finding Regent’s primary purpose not on credibil- any The fact that the court’s decision “was based does reflect an absence the witnesses” not ity findings regard evidence, that the in the court’s view explains conflict but Thus, the consid- did lack court credibility. witnesses’ not testimony ultimate determina- reaching ered and exhibits its testimony all tion, the record. which is evidence in supported evidence significant opinion absent

Notably majority was evidence following court’s The finding. trial supports freedom academic Regent’s policy, concerning colleges, presented and staff. faculty and the Arts is designed Communications College who think as Christians about communication stud- “develop persons ies.” Its in the School of Cinema-Television and Theatre Arts “is dedicated to with a professionals communication equipping based Its the mass media theatre arts.” biblically perspective to and is Script Screenwriting program designed graduates “prepare to become leaders who will be creative communicators their through and screenwriting and their and script truths ability implement principles the Word of God.” “The and administered program for the shaped integrate students the Word of God helping in their chosen Its Ph.D. involves intense “an profession.” program effort to scholars who are able to a develop integrate Christian worldview with their chosen within communication as discipline they teach, conduct research and their practice professions.” Prospective students must submit a writing sample “indicating ability [an] integrate a Christian worldview with the field and communication the arts and directly relating] that to the Word of topic God and/or the Judeo-Christian worldview.” The school looks for “students who closely with identify mission of [Regent’s] leadership-Christian Leadership.”

The School of (the school) seeks to Counseling students help “synergize academic, faith with personal in practice public, private, arenas,” and and corporate is “the evangelical of its only kind on the East Coast.” The of the school is “united a faculty common to a commitment Christian worldview.” The school’s pro- grams a model of . . “embody counseling[,] Christian . based upon of human scriptural understanding nature.” The school “endeavors to provide integration of sound clinical leadership and bibli- procedure based values in cally and health service program development provi- sion.” A “distinctive” feature of its is “the integration of programs skills, and counseling knowledge, with biblical foundations strategies and faith The school summarizes this practices.” as follows: there is no definition agreed-upon regarding

[S]ince the use of faith within the counseling process, we as a present integration rather than a process separate course or series of techniques. in Integration our own begins Christian walk. Our programs and, give additional tools and guides for the process hopefully, seeds that plant continue to and grow long mature after the We degree obtained. teach faith as intentionally principles integrated within that in counseling recognizing practice, be A student’s artificial. may

academic encounter setting in fruition integration brings and understanding knowledge continued processional with counseling practice setting maturation experience. spiritual Biblical Foundations truth, exists, all is a is the source of

We believe that God us Creator and Redeemer who calls just, loving, compassionate Himself and others. Theory practice with relationship counseling taught applica- the field of conjunction and values. Students are encouraged tion of biblical principles hermeneutics, as systematic in such areas theological study man, ethics, the and the Christian nature God theology, and Christian coun- disciplines use biblical principles setting. seling (M.A.), offers a clinical masters degree

The school three degrees: (M.A.), and a doctor of degree psychology nonclinical masters counsel- clinical M.A. “combines contemporary degree (Psy.D.). biblical foundation for and theories with a solid ing techniques M.A. nonclinical counseling balance approach.” spiritual and others training clergy to offer human relations “designed who skills.” “The ministry counseling pur- active in Christian desire in is to and practice of nonclinical track training pose provide of human nature.” skills a foundation biblical using interpersonal but professionals, is not to clinical develop “The of goal program church/ministry help to train who seek to others within students has “an added). the doctorate Finally, setting.” (Emphasis and calls of faith “integration for integrative approach,” Courses offered the school include: practice.” in An of Counseling!;] exploration Issues Integrative various and limits for integrating psychological possibilities will review in Students counseling. theories and Christian faith as a toward integration step and models for previous assess and Chris- integrating theory their own developing approach tian in clinical practice. faith

%* ^[*] and analyzes This course and Application!;] Hermeneutics and biblical hermeneutics psychologi- of synthesizes principles in the inductive are basic skills taught Students cal practice. method of and the Christian observing, interpreting applying end, As a means to this an intensive inductive Scriptures. 1-3). of is made of Mark Other study (chapters Gospel they from the Bible considered as address areas passages for various therapeutic application psychological problems and disorders. and demonstration Role-play application skills are analyzed, critiqued synthesized.

* * ^[*] Traditions Christian An Healing: Integrated Approach!;] A holistic Christological approach exploring reconsider- ing gifts God the various graces healing aspects of the human An will include a person. integrated approach based biblically analysis of historical synthesis Christian traditions and deliverance as these pertaining healing relate to the practice counseling.

* * ^[*] Practical;] Clinical A supervised clinical practicum experi- ence work environment six appropriate semesters for two credits semester. Students per will learn how to integrate their Christian worldview and with the practice theory practice psychology.

The School attributes the “ultimate goal” counseling to be the Christ,” “maturation it patient’s image of and seeks to produce who “reflect the graduates character of Christ within their profes- sional involvements.”

“The primary mission of Regent University School Educa- tion is to leaders from a biblical in order that prepare perspective they might education significantly worldwide.” Its impact “programs standards,” are based on time-honored biblical and its have a faculty “worldview based a core of biblical beliefs.” upon Through pro- gram, “students learn how to integrate research-supported concepts and skills with biblical worldview.” The “Christian School Pro- gram” School Education Christian school teach- “prepares ers and to administrators educate toward God’s for expectations Holy (I 2:9).” Nation Peter This citizenship offers classes such program as: This course theme holy

Christian Heritage[:] develops 2:9) its for (I Peter and Chris- implications nation citizenship and outcomes Chris- tian education. It provides text, matters of Biblical Chris- subject tian education using classics, and logic and the skills of tian Christian history, . . . rhetoric. will learn to use

Hermeneutics Students Education[:] to and them educationally inductive Bible methods study apply students will learn how to relevant questions. Additionally, learners of various ages. teach Biblical content to course focuses on the Biblical This Integration/Apologetics[:] content in the and of Biblical student’s integration personal methods, examine and life. Students will models professional and Biblical curriculum of personal professional examples will write a Integration. Students also sample-integrated curriculum. of Business’ mission to “transform society School

Regent’s and its students “to build to through leadership” prepare Christian and ser- products that dynamic organizations provide life-improving to the Jesus Christ life-giver, [through] in a way points vices 20:20-28).” The materials for (Matthew servant-leadership state that it “desires to admit students” who of Business School lead and who “believe God called them to share the school’s mission for the of God.” management glory others in business and skills graduate-level knowledge school attempts “[ijmpart world-view, . . . a balanced view of within a biblical [i]mpart life[, that are consis- students life [h]elp develop plans Christian and] of their gifts call on their lives and good stewardship tent with God’s in business administration program and talents.” Its masters track management nonprofit masters in management a comprehensive are students designed “[implement prepare to work in way which relates spirituality plan lives] [their Christ,” and increase grow, and to others “[h]elp develop glorifies biblical skills using principles improve people productivity students In these programs, required of the Holy Spirit.” power from the School come may take credits of electives six “Salvation, The Holy courses such as include Divinity, may Nation.” of the Theocratic Living,” & “Birth Christian Spirit Christian also reflect strongly integrated other schools Regent’s on the view is premised School of Government Regent’s viewpoint. United States of America is founded a nation bibli- upon “[t]he cal and it “the goal is of the Robertson School of Gov- principles,” restored, ernment that heritage this be renewed and enhanced in America, and that this also be nurtured in other heritage and planted nations.” Center for Regent’s Studies is self-described as Leadership world,” center for the “premier Christian and leadership-training it is founded on a “framework grounded in biblical truths.” Scripture is integrated into Law School curriculum because “a lot of law has come from a biblical perspective.” defined

Regent’s that academic freedom a policy provides is in “context of standards or norms” including:

1. God is the source of all truth. The are the written Scriptures of truth and the revealed expression will of God. There is also natural revelation. Both of revelation types contribute to our of truth. understanding

2. Academic freedom functions within Regent University’s mission statement and its statement faith. Specifically, statement, within the mission member faculty takes role of a Christian being leader order model Christian to students. Academic leadership freedom serves make the a university center of Christian and “leading thought action.” vision, Regent’s “. . . to transform society by affirming truth, love, teaching principles justice and as described in Christ, embodied in the Holy of Jesus Scriptures, person and enabled through can be power Holy Spirit,” achieved if demonstrate these only faculty principles classroom.

Regent’s policy “research efforts must be provides guided by Bible, statutes, three sources of criteria: the Holy civil laws the mission of Regent University.” curriculum,

With to its respect each faculty member to include in the required for each a syllabus class “description how the Christian faith the Bible bewill into the incorporated course.” At Regent, desirable that all faculty be prospective “[i]t proficient their effectively integrating faith and learning,” pro- ficiency bemay demonstrated a of an “by submitting paper integra- tive nature or course materials that demonstrate developing appropri- ate skills and integrative The dean will understanding. review these materials and a consult with member may School Divinity.” do not demonstrate proficiency

Those members who faculty one by it within three years hiring completing to obtain required course of study activities: following prescribed or more of by and/or hermeneutics offered the School “Christian doctrine doctrine, hermeneutics and inte- list on Divinity, reading prescribed jointly and discussion series offered gration, lecture Dr. University.” and other within the School of schools Divinity are to “hold to State- faculty tight” conceded that Selig expected Faith, what teach they of the relation between ment “understand!] . . Statement . . . . from the Mission starting, and what believe they Faith, that of and . . . teach students from or Statement perspective.” and staff hires Christian and staff. Regent only faculty Faculty of to with and adhere to Statement Faith. Regent’s are required agree their “conver- regarding must submit statement Faculty applicants commitment, sion, . . with the present- Christian and . acquaintance fruits and minis- gifts, renewal movement which day emphasizes aby University This Statement is reviewed Holy tries Spirit.” determine Dr. Selig whether an interview official to appropriate. ensure that the applicant that this review is designed testified of Christianity: adheres to characterization Regent’s have who said that they have had who people applied [W]e it, we find that were a Christian but in reading persuasion, we call a not a Christian not what would they’re persuasion, . . . We have who have applied Christian persuasion. people and that’s gods, Christians but have not they’re many who say . . . not have this what we describe as Christian. We’d rather fit. arrive here and find out didn’t they person are “not testified that members Selig faculty Dr. Although are no sanctions taken to attend chapel, punitive required” services, he conceded do not show for these who persons up against attendance. encourages” According that Regent “strongly chapel Handbook, Handbook, Faculty Application, Staff Faculty Regent’s University that Regent it is “imperative and Staff Application, . . and involved staff and . maintain exemplary students faculty, Hand- church attendance.” The Employee lifestyle regular including book states: and to glo- serve University

Because Christ, that all members of it is essential the Lord Jesus rify as to seek His body Him a community approach University Therefore, guidance, strength and for blessings. approximately week, minutes at least one of each at or near the day thirty hour, noon convenes ser- University corporately chapel vices. All are to be in unless expected employees chapel spe- their cifically exempted supervisor.

Furthermore, maintains a tenure for its system faculty and one of members the “Performance Review Criteria for Faculty” is that “because mission ... it is unique Regent University members will exhibit expected faculty spiritual vitality through witness, their Christian both personally professionally.” Faculty Handbook further divides these Performance Review Criteria areas, into three basic one which includes student “[c]onducting Bible Addi- study/fellowship groups regularly attending chapel.” tenure, when tionally, members applying promotion faculty a dossier that required complete includes “Summary Christian vitality, which includes such activities/spiritual as things attendance, devotions, frequency chapel staff home participation studies, Bible church activity involvement in other areas where there has been a demonstration of vitality.” spiritual whether, law,

The before us question then becomes as a matter of the trial court (e) Code correctly 23-30.41 to the evidence applied § In this it regarding Regent’s primary is to purpose. respect, necessary determine the of the meaning or statutory phrase “religious training The theological education.” majority educa- interprets “theological tion” to mean education “students for vocations associated preparing ordination, rabbi, contrast, such as minister or In the priest.” majority “religious to mean education interprets training” preparing “students for vocations other than religious those associated with Thus, the ordination.” concludes majority that this refers phrase only to “institutions or departments within institutions” whose “primary function is students for educating religious vocations.”

The majority this determination the supports by citing Report the Commission (1969)(the on Constitutional In Revision Report). the particular, relies on a reference a majority in the to Mem- Report orandum submitted the by Association of Independent Colleges, which is contained in the received the public Com- commentary However, mission. See at 274 n.39. Report reading a of this material in its full context does not reliance on the support majority’s quoted of the Memorandum. portion While does quoted portion cited, in the referenced in appear are not pages Report, pages meaning phrase “relig- implies, clarify as majority training.” ious

Instead, for its factual cites the Memorandum asser- the Report within the Association had “some tion that nine Virginia colleges did not “impose[] any religious of church but relationship” degree or selection” faculty primarily tests for student admission “serve[] thus drew a faith.” at 274. The Commission single religious a Report that do not their emphasize clear distinction between institutions on emphasis religious church and those that relationship put strong in that it category falls in the latter faith. Unquestionably, into religion test for selection and takes faculty imposes religious admissions. account in its student cites 20 of Memorandum by majority portion quoted drawn in the Memorandum 751(a)(2) for the distinction

U.S.C. § . . and an . whose “between a church related institution college pri vocations.” Memo religious students for function mary educating Yet, federal statute for the at 6. this distinction randum appears as divinity,” namely, a “school or defining department for the education of is specifically an institution “whose program or to enter religion them to become ministers students prepare 751(a)(2) . . .” 20 U.S.C. vocation . religious some other upon § added).* of the federal stat (1968) portion This (repealed) (emphasis not, as the majority its vocation” does language ute with “religious “religious training.” to define the broader term implies, purport on the major- which the distinction Finally, quoted portion “an whose service primary relies between institution ity to a service is religious and one whose primary state community not the conclusion does clearly support or denominational group,” to edu- 23-30.41(e) refers as used in Code training” that “religious other than those vocations religious cation “students preparing a student for To the contrary, associated with ordination.” preparing than is con- meaning even more limited vocation has an religious service ... “primary templated by phrase denominational group.”

current Code here 20 U.S.C. any part ^[*] Although separately § statutes, 23-30.41(b). of the § 1062(c)(1); ^[20] program excludes U.S.C. its limited § “any facility 30 U.S.C. 751(a)(2) a school or application § is which is used or 1325. Like the federal department no longer is apparent in of divinity effect, See in each. to be used the same definition statute, any primarily 20 U.S.C. § e.g., the religious denomination.” Virginia in connection can be found in Act at issue 103(9)(A);

651 view, In my rewrites Code 23- majority effectively opinion § 30.41(e). The General use of the “or” Assembly’s disjunctive word denotes that is not the as clearly “religious training” “theologi- same Moreover, cal education” within the context of this statute. the word “vocation” does not in the statute. anywhere It is appear generally in one’s vocation is work a is accepted regu- which person and, context, the larly in term not employed does ordinarily equate rabbi, minister, or such that of professional occupational status as or director of missionary, education priest, only acquired education. through theological

Indeed, even the narrow used applying interpretation 4, majority and to the contrary majority’s in footnote reasoning nonclinical M.A. violates the degree counseling prohibition 23-30.41(e) Code because goal § is not to “[t]he clinical but to train develop professionals, students who seek to help However, others within it church/ministry setting.” is clear that the statute does not resorted support piecemeal analysis to by majority. 23-30.41(e) Code refers to an “institution” § rather than schools, Thus, within an institution. departments, programs even I though concur that Regent’s School of Divinity ineligible par- in the bond ticipate 24-30.41(b), Code the focus of our program, § inquiry should not be a dissection into its constituent schools their but an departments examination programs, “primary institution as a purpose” whole. The limitation contained (e) in Code 23-30.41 expressed § clear and terms. We unambiguous have stated that when repeatedly in a statute is language clear and unambiguous, we apply rule, rule. plain meaning Under this we endeavor ascertain and effect to give the intention of the from the words used in legislature statute, unless literal construction of the statute would yield absurd result. We not may a construction of the statute that adopt would amount ato that the did not it holding legislature mean what Landsidle, has See v. actually generally Earley 257 Va. expressed. 365, 369-70, 153, (1999); 514 S.E.2d 155 Catron v. State Farm Co., 31, 38, 436, Mutual Auto Insurance 255 Va. 496 S.E.2d (1998); 335, 339, Hubbard v. Henrico Ltd. 255 Va. Partnership, 335, (1998); S.E.2d and City Winchester v. American Wood 451, 457, mark 250 Va. Corp., (1995). 464 S.E.2d viewed, When so of Code language 23-30.41(e) applies is, an institution of higher education whose its primary purpose, is to principal purpose, provide religious training edu- theological 652 context, the stat- secular education. In general

cation rather than one institution have may only pur- ute that a particular acknowledges Accordingly, of all these purposes. or some combination pose insti- where a only of this statute applies particular limiting language educa- theological is religious training tution’s purpose primary at Religious training is not issue here. Theological tion. education doctrine religious accomplish particular teaching contemplates Thus, is to teach its an institution’s principal purpose result. when doctrine, that and when institution pursues particular religious institu- of secular that teaching subjects, its principal through purpose meaning within the religious training tion has as its primary is the The record reflects that such (e). clearly of Code 23-30.41 § case with Regent. institution is a sectarian Regent pervasively

While fact that religious is does the conclusion that its primary purpose not compel is to be considered in the determination required it a fact training, concluded, 23-30.41(e). is Regent As the has majority under Code § “ ‘an institution[,]” it is institution sectarian because a “pervasively of its func- is that substantial religion portion in which so pervasive ” v. mission.’ Habel Industrial tions are subsumed in [its] 96, 101, 516, 241 Va. 400 S.E.2d 519 Authority, Development McNair, 734, (1973)). 743 Moreo- Hunt v. U.S. (1991)(quoting ver, Regent the conclusion that operated the record supports Statement, Articles of Incorpora- its Mission strict conformance with tion, Faith, Also control- and academic freedom policy. Statement faculty are the Regent policies governing ling operation Handbook, Handbook, Staff Faculty reflected in the Faculty staff as the secu- and the and Staff Application, requirements Application, short, the In religious purpose. lar offered to sustain Regent’s courses “ultimate stated pur- record conclusion compels Regent’s Christ,” Son, His Jesus is to God and “glorify[] which pose,” 23- Code meaning its within § indeed “primary purpose” 30.41(e). brief, contained contends that if limitation

On the VCBA revenue bond 23-30.41(e) bars it from Code participating here, this constitutes “viewpoint impermissible issue v. Rec- Rosenberger the First Amendment. See discrimination” under U.S. University Virginia, tor and Visitors the trial argument failed to assert this (1995). Because the VCBA court, time in this first not raise that issue may the VCBA Rule 5:25. appeal. reasons,

For these I dissent from the hold- majority’s respectfully erred in that the trial court was ing ruling ineligible in bond under the Educational Facilities Author- financing participate Because I hold that the Act Act. would does not ity permit Regent in this bond the issue whether its participate program, participation would violate the Establishment Clause is moot. I do Accordingly, not address that issue considered in the majority opinion. notes anticipation and other of the for of its obligations Authority any corporate pur A 23-30.42(b). Code authorized poses.” for “project” § participation under the Act is defined in as follows: pertinent part case of a “Project,” institution for participating higher education, a structure or structures for as a suitable use dormi- students, or other multi-unit for tory faculty, housing facility hall, union, officers or a student administra- employees, dining tion academic research building, laboratory, building, library, classroom, athletic health care mainte- facility, facility, facility, nance, or and other structures or facili- storage utility facility related ties or or useful for any foregoing required instruction of students or the or the conducting research education, . . higher of an institution for . and shall operation not include used or to used sectarian any facility be for instruction or as a nor any facility place religious worship or used in connection with any which is used to be primarily for school or department divinity part denomination. any religious “[ijnstitution 23-30.41(b). educa- Code higher Specifically, § institution within tion” is defined as educational nonprofit “[a] or is to collegiate Commonwealth whose primary purpose provide training theologi- not to provide religious education and graduate 23-30.41(e). cal education.” Code § bonds that enjoy the VCBA issues Generally speaking, Code income under United States Internal Revenue tax exemption and, residents, Code 23-30.53. Virginia pro §§ loaned institution of higher ceeds bonds issued are qualified term, “conduit”) (hence education descriptive repayment bond is made trustee who monitors institution’s through holders credit-worthiness, and terms of the loan. payments, compliance bonds, has active role. The After issuance of VCBA no quali all associated with the fied institution of education costs higher pays loaned, and: granted issuance of the bonds. No state funds Revenue bonds issued under the provisions chapter be deemed to constitute a debt or liability shall not thereof or any Commonwealth or of subdivision political

Case Details

Case Name: Virginia College Building Authority v. Lynn

Court Name: Supreme Court of Virginia

Date Published: Nov 3, 2000

Citation: 538 S.E.2d 682

Docket Number: Record 992099

Court Abbreviation: Va.