Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser and
Lemons, JJ., and Poff, S.J.
VIRGINIA COLLEGE BUILDING AUTHORITY
v. Record No. 992099 OPINION BY JUSTICE DONALD W. LEMONS
November 3, 2000
BARRY LYNN, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
The Virginia College Building Authority (“VCBA” or
“Authority”) approved the issuance of revenue bonds,
colloquially referred to as “conduit bonds,” for the benefit
of Regent University (“Regent”). The funds to be raised by
the bonds were designated to finance projects at a new campus
in Alexandria and for refinancing of student housing on the
Virginia Beach campus. Pursuant to the Public Finance Act of
1991, Code §§ 15.2-2600 to -2663, the VCBA filed a motion for
judgment in the Circuit Court for the City of Richmond
requesting validation of the bonds.
Appellees, Barry Lynn and other unnamed Virginia members
of Americans United for Separation of Church and State, and
Frank Feibelman, Mary Bauer, and Bernard H. Levin appeared and
filed grounds of defense contesting the validation of the
bonds. At the time of the circuit court hearing, VCBA had
completed approximately thirty-five bond issues for private
colleges or universities in the Commonwealth of Virginia.
After hearing evidence, the circuit court refused to
validate the bonds, holding that Regent is ineligible to
participate in the VCBA program because Regent is a
pervasively sectarian institution and because its primary
purpose is “religious training.” In this appeal, we consider
the circuit court’s denial of Regent University’s
participation in bond financing of these projects pursuant to
the Educational Facilities Authority Act, Code § 23-30.39 et
seq. (the “Act”).
I. FACTS
A. REGENT UNIVERSITY
Regent University is self-described as a “private
Christian university” with a main campus located in Virginia
Beach, Virginia. Regent offers more than 20 graduate degrees
through eight accredited colleges, including the College of
Communication and the Arts, School of Counseling and Human
Services, School of Government, School of Business, School of
Education, School of Law, School of Divinity, and the Center
for Leadership Studies. 1 Regent is accredited by the Southern
1
Regent offers the following graduate degrees: M.A. in
Organizational Leadership, Ph.D. in Organizational Leadership,
M.A. in Communication, M.A. in Journalism, M.A. in Script and
Screenwriting, Ph.D. in Communication, M.A. in Counseling,
Doctor of Psychology, M.A. in Biblical Studies, M.A. in
Missiology, M.A. in Practical Theology, Master of Divinity in
Missiology, Master of Divinity in Practical Theology, Doctor
of Ministry, Master of Education, Certificate of Advanced
2
Association of Colleges and Schools (“SACS”) and its Law
School is separately accredited by the American Bar
Association (“ABA”).
Regent was founded upon Dr. M.G. (“Pat”) Robertson’s
“inspired vision of establishing a graduate-level institution
that would train mature men and women for the challenge of
representing Christ in their professions.” It was
“incorporated . . . to recover the Christian heritage of our
nation.” Regent’s “ultimate purpose” is to “glorify[] God and
His Son, Jesus Christ.”
Regent was created under the auspices of the Christian
Broadcasting Network, Inc. (“CBN”), the Board of Directors of
which still appoints the chairman and all 48 members of the
University’s Board of Regents. Three members of Regent’s
board are also members of CBN’s board. Characterized as a
“parachurch organization” with a “Christian purpose,” CBN is
to own all assets and incur all debts in the event of the
dissolution of Regent. Regent has received over $200 million
in financial support from CBN. As the founder and president
of CBN, and the Chancellor of Regent, Robertson acts as “the
principal liaison” between CBN and Regent. He consults with
Regent “on such matters as the mission of the university, its
Graduate Studies, M.A. in Public Policy, M.A. in Political
Management, Master of Public Administration, and Juris Doctor.
3
scope and its direction,” and provides guidance on and
coordinates matters such as Regent’s fiscal expenditures and
general resource development.
Regent’s Articles of Incorporation, provide that:
[Regent] shall exist for the purpose of
bringing glory to God and His Son Jesus
Christ by providing an institution or
institutions of learning in which those who
are mature in the knowledge of God and His
ways can assist and guide, in a spirit of
free inquiry and scholarly excellence,
those who would learn of Him, His ways, and
His creation, while together they study
ways to glorify God and better their world.
Regent has adopted a Statement of Faith that provides:
Regent University is a Christ-centered
institution. The Board of Trustees, along
with the faculty and staff of the
university, are committed to an evangelical
interpretation and application of the
Christian faith. The campus community is
closely identified with the present-day
renewal movement, which emphasizes the
gifts, fruit and ministries of the Holy
Spirit. It is expected that all trustees,
officers, administrators and faculty will
subscribe to this statement in writing:
1. That the Holy Bible is the inspired,
infallible and authoritative source of
Christian doctrine and precept.
2. That there is one God, eternally
existent in three persons: Father, Son and
Holy Ghost.
3. That man was created in the image of
God but, as a result of sin, is lost and
powerless to save himself.
4. That the only hope for man is to
believe on the Lord Jesus Christ, the
virgin-born son of God, who died to take
upon Himself the punishment for the sin of
4
mankind, and who rose from the dead, so
that by receiving Him as Savior and Lord,
man is redeemed by His blood.
5. That Jesus Christ will personally
return to earth in power and glory.
6. That the Holy Spirit indwells those
who receive Christ, for the purpose of
enabling them to live righteous and holy
lives.
7. That the Church is the Body of Christ
and is comprised of all those who through
belief in Christ have been spiritually
regenerated by the indwelling Holy Spirit.
The mission of the Church is worldwide
evangelization and the nurturing and
discipling of Christians.
Additionally, Regent has adopted a Mission Statement that
provides:
Preamble — Regent University is a graduate
institution that exists to bring glory to
God the Father and His Son Jesus Christ
through the work of the Holy Spirit.
Mission — Our mission is to provide an
exemplary graduate education from biblical
perspectives to aspiring servant leaders in
pivotal professions and to be a leading
center of Christian thought and action.
Vision — Our vision, through our graduates
and other scholarly activities, is to
provide Christian leadership in
transforming society by affirming and
teaching principles of truth, justice and
love as described in the Holy Scriptures,
embodied in the person of Jesus Christ, and
enabled through the power of the Holy
Spirit.
Regent Provost Dr. William George Selig (“Dr. Selig”)
testified that the practical function of these statements is
to:
5
[S]et[] the stage of [Regent’s] world view,
that we exist to bring glory to God. And
that’s our preamble. But our mission,
which is played out in very practical
terms, is to provide an exemplary graduate
education. In other words, the finest
possible education we can provide from [a]
biblical perspective to people we hope will
go on and make a difference in society.
Apart from the School of Divinity which has a specific
purpose of theological education, instruction in other schools
focuses upon traditional subjects with inclusion of biblical
perspective where applicable. As Dr. Selig explained: “In
areas where [scripture] doesn’t fit, we don’t use it or we
don’t spend any time talking about it. In areas where it
fits, we do. And so it’s just a consistency in our world view
as to how we behave toward others and what does scripture have
to say.”
Regent has approximately 108 faculty members and 1,850
students, 289 of whom are enrolled in the School of Divinity.
The average age of a Regent student is 31. Regent has no
specific religious requirement for student admissions. Its
admissions criteria include: (1) high intellectual achievement
and scholarship, with a minimum grade point average and test
scores, (2) “maturity in spiritual and/or character
qualities,” and (3) “[p]ersonal goals consistent with the
mission and goals of Regent University.”
6
Dr. Selig explained that although some schools at Regent
inquire into “Christian commitment” for the purpose of
evaluating ethical or moral standards, the lack of such a
“commitment” does not negatively impact an applicant’s
standing for admission. All applicants are required to submit
a “Clergy Recommendation,” both as a matter of policy and
practice. Among the questions asked is whether the applicant
has “made a meaningful personal commitment to Jesus Christ.”
Dr. Selig explained the relevance of this information as
follows:
Well, we’re looking for moral and ethical
standards, and we believe that if somebody
is — and it’s certainly, not 100 percent
assured — but if somebody has made a — has
made a Christian commitment, then we’re
assuming that they’re attempting to live
according to the tenets of scripture. So
we see that as one piece of information
that would be helpful.
Applicants also must submit a signed “Community Life Form,”
stating that they must “understand and be committed to
receiving an education” in accordance with Regent’s Statement
of Faith.
Although encouraged to do so, students are not required
to attend Regent’s weekly corporate chapel services or
participate in any particular religious activities. However,
they must have “[p]ersonal goals consistent with the mission
and goals of Regent University,” and must submit a “[p]ersonal
7
goals statement” addressing how their “personal and spiritual
objectives” relate to Regent’s “Christ-centered educational
philosophy.” The instructions explain that “for the
Christian, [a goal] is a statement of faith in God’s will for
his or her life.”
Faculty, unlike students, are required to sign a document
indicating their adherence to the “Statement of Faith.” They
are “strongly encouraged but they’re not required” to attend
chapel. The faculty is required to integrate “faith and
learning.” Dr. Selig testified, and the SACS and the ABA
agree, that the Statement of Faith has not interfered with
academic freedom. Regent’s detailed academic freedom policy
encourages faculty to “pursue truth . . . by research,
discussion, and other forms of inquiry.” Nonetheless, Regent
prohibits faculty from using “their position or classroom as a
platform to demand adherence by students to a personal
theological viewpoint, political preference or social agenda.”
The SACS in a review of Regent’s accreditation application in
1998 found that “[f]aculty and students are free to examine
all pertinent data, question assumptions, be guided by the
evidence of scholarly research, and teach and study the
substance of a given discipline.” With respect to its
curriculum, each faculty member at Regent is required to
include in the syllabus for each class a “description of how
8
the Christian faith and the Bible will be incorporated into
the course.”
B. THE BONDS
Article VIII, § 11 of the Constitution of Virginia
provides that:
The General Assembly may provide for loans
to, and grants to or on behalf of, students
attending nonprofit institutions of higher
education in the Commonwealth whose primary
purpose is to provide collegiate or
graduate education and not to provide
religious training or theological
education. The General Assembly may also
provide for a State agency or authority to
assist in borrowing money for construction
of educational facilities at such
institutions, provided that the
Commonwealth shall not be liable for any
debt created by such borrowing. The
General Assembly may also provide for the
Commonwealth or any political subdivision
thereof to contract with such institutions
for the provision of educational or other
related services.
Pursuant to this constitutional authorization, the
General Assembly of Virginia enacted the “Educational
Facilities Authority Act.” The General Assembly declared in
Code § 23-30.39 the public policy of the Commonwealth of
Virginia as follows:
It is hereby declared that for the benefit
of the people of the Commonwealth, the
increase of their commerce, welfare and
prosperity and the improvement of their
health and living conditions it is
essential that this and future generations
of youth be given the fullest opportunity
9
to learn and to develop their intellectual
and mental capacities; that it is essential
that institutions for higher education
within the Commonwealth be provided with
appropriate additional means to assist such
youth in achieving the required levels of
learning and development of their
intellectual and mental capacities; and
that it is the purpose of this chapter to
provide a measure of assistance and an
alternative method to enable institutions
for higher education in the Commonwealth to
provide the facilities and structures which
are sorely needed to accomplish the
purposes of this chapter, all to the public
benefit and good, to the extent and manner
provided herein.
To carry out the purposes of the Educational Facilities
Authority Act, an agency of the Commonwealth entitled the
“Virginia College Building Authority” was created. Among its
powers and duties, the Authority may “issue bonds, bond
anticipation notes and other obligations of the Authority for
any of its corporate purposes.” Code § 23-30.42(b). A
“project” authorized for participation under the Act is
defined in pertinent part as follows:
“Project,” in the case of a participating
institution for higher education, a
structure or structures suitable for use as
a dormitory or other multi-unit housing
facility for students, faculty, officers or
employees, a dining hall, student union,
administration building, academic building,
library, laboratory, research facility,
classroom, athletic facility, health care
facility, maintenance, storage or utility
facility and other structures or facilities
related to any of the foregoing or required
or useful for the instruction of students
10
or the conducting of research or the
operation of an institution for higher
education, . . . and shall not include any
facility used or to be used for sectarian
instruction or as a place of religious
worship nor any facility which is used or
to be used primarily in connection with any
part of the program of a school or
department of divinity for any religious
denomination.
Code § 23-30.41(b). Specifically, an “[i]nstitution for
higher education” is defined as “[a] nonprofit educational
institution within the Commonwealth whose primary purpose is
to provide collegiate or graduate education and not to provide
religious training or theological education.” Code § 23-
30.41(e).
Generally speaking, the VCBA issues bonds that enjoy
income tax exemption under United States Internal Revenue Code
§§ 103, 145 and, for Virginia residents, Code § 23-30.53. The
proceeds of bonds issued are loaned to the qualified
institution of higher education (hence the descriptive term,
“conduit”) and repayment to bond holders is made through a
trustee who monitors the institution’s payments, credit-
worthiness, and compliance with terms of the loan. After
issuance of the bonds, the VCBA has no active role. The
qualified institution of higher education pays all costs
associated with the issuance of the bonds. No state funds are
granted or loaned, and:
11
Revenue bonds issued under the provisions
of this chapter shall not be deemed to
constitute a debt or liability of the
Commonwealth or of any political
subdivision thereof or a pledge of the
faith and credit of the Commonwealth or of
any political subdivision, but shall be
payable solely from the funds herein
provided therefor from revenues. . . . The
issuance of revenue bonds under the
provisions of this chapter shall not
directly or indirectly or contingently
obligate the Commonwealth or any political
subdivision thereof to levy or to pledge
any form of taxation whatever therefor or
to make any appropriation for their
payment.
Code § 23-30.49.
Upon Regent’s application for participation under the
Educational Facilities Authority Act, the VCBA on June 22,
1999 adopted a resolution approving bonds for the benefit of
Regent for projects including a new campus in Alexandria
containing classrooms, administrative space, a communication
and arts complex, an events center on the Virginia Beach
campus, and refinancing of student housing in Virginia Beach
previously financed with tax exempt bonds. Specifically, the
VCBA Resolution mandates that no bond proceeds will be used to
provide:
(a) any facility used or to be used for
sectarian instruction or as a place of
religious worship, including any chapel and
the like or (b) any facility used or to be
used primarily in connection with any part
of the program of a school or department of
divinity for any religious denomination;
12
and in particular the proceeds of the Bonds
will not be used to provide facilities for
the University’s Divinity School.
In its application Regent proposed that it would make a
pro-rata equity contribution for the use of that portion of
the Alexandria building subject to the financing by bonds, in
order to compensate for use of the facilities by the School of
Divinity. Additionally, in testimony, Dr. Selig indicated
that Regent “would lease space out elsewhere” and not use the
bond-financed facilities for the School of Divinity if the
pro-rata equity contribution proposal was not approved.
II. STANDARD OF REVIEW
At the trial of this matter, both parties submitted
exhibits to be considered by the court; however, only VCBA
offered testimony. The trial judge ruled from the bench
immediately upon the conclusion of the presentation of
evidence and arguments of counsel. Thereafter, counsel for
appellee submitted a proposed order, 17 pages in length,
containing detailed findings of fact and conclusions of law.
The trial judge declined to enter the proposed order saying:
I didn’t disbelieve any witness who
was on the stand. I just had a different
interpretation of the facts than those
witnesses had of the facts. I mean to the
extent that it helps you at all, my
decision was not based on any credibility
findings with regard to the witnesses. It
was based solely on the record. And the
13
[appellate] Courts will have exactly the
same record that [I] have. I really don’t
see why I have to make findings of fact and
conclusions of law.
****
. . . why does the Supreme Court of
Virginia or the Supreme Court of the United
States need to know how I interpreted the
law? What difference does it make to them
how I interpreted the law?
Considering the observations of the trial judge and upon
our examination of the record, we conclude that “[w]hile the
parties disagree as to the conclusions to be drawn from the
factual record, the facts themselves are not in dispute.”
Smyth County Community Hosp. v. Town of Marion, 259 Va. 328,
331, 527 S.E.2d 401, 402 (2000).
The determination of Regent’s eligibility for
participation under the Educational Facilities Authority Act
is a mixed question of law and fact. Therefore, we conduct a
review of the trial court’s application of law to the
undisputed facts. Cinnamon v. Int’l Bus. Machines Corp., 238
Va. 471, 474, 384 S.E.2d 618, 619 (1989).
III. ISSUES PRESENTED
VCBA contends that the trial court erred in denying
validation of the bonds for the benefit of Regent. It
maintains that extension of the benefits offered under the Act
to Regent would not violate the Constitution of Virginia or
14
Virginia statutory provisions, nor would it violate the
Establishment Clause of the First Amendment to the United
States Constitution. VCBA asserts that its program of bond
financing involves aid provided in a neutral fashion to
eligible institutions of higher education in the Commonwealth.
Further, VCBA maintains that Regent is not a pervasively
sectarian institution and that even if it is pervasively
sectarian, this form of aid is, nonetheless, permissible.
Additionally, VCBA contends that refusal of validation of the
bonds for the stated reasons amounts to discrimination based
upon the recipient’s viewpoint, which is prohibited by the
free speech clauses of the United States Constitution and the
Constitution of Virginia.
Appellees urge this Court to uphold the circuit court’s
denial of validation of the bonds because they contend that
Regent is pervasively sectarian and its participation in
state-sponsored bond financing is impermissible under the
Constitution of Virginia and statutes and violates the
Establishment Clause of the First Amendment to the United
States Constitution. At the very least, appellees maintain
that the Regent School of Divinity should not be permitted to
utilize any space in buildings financed by the bonds.
Finally, appellees assert that denial of validation does not
implicate free speech issues.
15
The posture of this case requires our consideration of
the issues in a precise order. We must first consider whether
the validation of the bonds would violate the Act or the
provisions of Article VIII, § 11 of the Constitution of
Virginia. Second, we must consider whether the Establishment
Clause of the First Amendment to the United States
Constitution and/or Article I, § 16 of the Constitution of
Virginia would be violated if the bonds were validated. Only
if we determine that a violation of the Act or the various
provisions of the Constitution of Virginia has occurred do we
consider the question of violation of free speech rights based
upon viewpoint discrimination.
IV. ANALYSIS OF STATE ISSUES
Both the Act and Article VIII, § 11 of the Constitution
of Virginia state that aid is permitted to institutions “whose
primary purpose is to provide collegiate or graduate education
and not to provide religious training or theological
education.” Va. Const. art. VIII, § 11, Code § 23-30.41(e).
In addition to finding that Regent was pervasively sectarian,
the trial court held that it could not validate the bonds
because Regent had “a primary purpose of religious training,”
which would violate the Act and Virginia constitutional
provisions. Appellees candidly concede that, apart from
particular concerns about the School of Divinity, they do not
16
contend that Regent is such an institution. In their brief
appellees state:
Although the trial court found otherwise,
the Appellees did not contend in the court
below and do not contend here, that Regent
is such an institution. The Appellees’
only contention that involves Article
VIII, § 11 pertains to Regent’s proposal
of a pro rata contribution to compensate
for the Divinity School’s use of the bond-
financed buildings. Accordingly, the
general question of whether the bonds can
be issued turns on whether the issuance
would violate the federal Establishment
Clause and the parallel provision of the
Virginia Constitution, Article I, § 16.
Despite appellees’ concession, the trial court, nonetheless,
made these findings and we must review them. 2
As more fully developed in this opinion, we find that
Regent, in both policy and practice, is pervasively sectarian.
However, this conclusion does not resolve the question of its
primary purpose. In order to validate the bond issue, state
constitutional and statutory provisions require that Regent
must be an institution whose “primary purpose is to provide
collegiate or graduate education and not to provide religious
training or theological education.” With the exception of the
2
By contrast, the trial court did not address and the
parties did not argue in the court below or before us that use
of the proposed facilities would involve "sectarian
instruction" contrary to the Act (§ 23-30.41(b)) and the
Resolution. Accordingly, we do not address this issue.
17
Divinity School, we are satisfied that Regent meets this
requirement.
Definition of the phrase “religious training or
theological education” must precede our analysis of primary
purpose. The Report of the Commission on Constitutional
Revisions (“Report”) observed that “a theological seminary
would not qualify” for inclusion but stated that among “those
colleges and universities which would qualify, the section
makes no distinction between those which are church-related
and those which are not. Many of the private colleges in
Virginia are church-related, but typically they operate like
any other college.” Report of the Commission on Constitutional
Revision, 1969, p. 274.
Of particular help in our interpretation of the meaning
of the phrase “religious training or theological education” is
the Report’s reference to Public Views Document 100 which is a
“Memorandum to Commission on Constitutional Revision” from the
Association of Independent Colleges. The Report specifically
cites to that portion of the Memorandum which states:
The Association does not advocate
state aid for the promotion of theological
training or religious education. Clearly,
a seminary and its students should be
barred from state aid. Under the federal
Higher Education Facilities Act of 1963 a
distinction is made between a church
related college and an institution or one
of its departments whose primary function
18
is educating students for religious
vocations. See 20 U.S.C.A. § 751(a)(2).
This distinction is the difference between
an institution whose primary service is to
the state and community and one whose
primary service is to a religious or
denominational group. (emphasis supplied).
Public Views Document 100, p. 6.
Based on the language in this document and the Report of
the Commission on Constitutional Revision, we interpret the
phrase “theological education” to be applicable to a seminary
or other institution whose purpose is to prepare students for
vocations associated with ordination, such as rabbi, minister
or priest. By contrast, we interpret the phrase “religious
training” to be applicable to institutions or departments
within institutions whose purpose is preparation of students
for religious vocations other than those associated with
ordination. Such other vocations would include missionary or
director of religious education. In either case, the “primary
function is educating students for religious vocations.” 3
3
At the conclusion of Public Views Document 100, the
Association of Independent Colleges proposed adoption of the
specific language which was incorporated into the Act and Art.
VIII, § 11 of the Constitution of Virginia utilizing the
phrase "religious training or theological education." Id. at
13. We are mindful that Public Views Document 100 also
utilized the phrase "religious education or theological
training" in the body of its memorandum. Id. at 6. We are
persuaded that the interchangeable usage of "training" and
"education" in the memorandum does not detract from the
interpretation of the phrases in the Act and the Constitution.
19
With the exception of the School of Divinity, the primary
purpose of Regent’s graduate programs is preparing students
for secular vocations. Although an institution may have
multiple purposes, by definition it can have only one “primary
purpose.” Webster’s Third New International Dictionary (1993)
defines “primary” as “first in order of time or development.”
Id. at 1800.
Regent offers over 20 different graduate degrees in
subjects such as business, education, journalism, law, and
psychology. Regent is accredited by the SACS to award the
master’s and doctor’s degrees. In reaffirming Regent’s
accreditation, SACS noted that:
Regent University demonstrates a
well-documented concern for promoting and
assuring academic freedom and providing
for professional security of faculty
members. The faculty want to integrate
faith into learning, but no one attempts
to dictate to them how this is to be done.
****
Faculty and students are free to
examine all pertinent data, question
assumptions, be guided by the evidence of
scholarly research, and teach and study
the substance of a given discipline. All
the units seem very open to and supportive
of academic freedom, viewing it, as one
unit explains, as a “sacred trust.”
The ABA accredited the law school and such accreditation
permits its graduates to apply for licensure to practice law
20
in all 50 states. The ABA also found no inhibition of
Regent’s academic freedom.
The law school at Regent provides a good illustration of
Regent’s primary purpose. First year students are required to
take courses in Common Law, Contracts, Torts, Civil Procedure,
Legal Research and Writing, and Property. Students are
exposed to the same core curriculum that permeates the first
year at any law school in the country.
Regent may have an idealized mission of “glorifying God
and His Son, Jesus Christ.” However, this precatory language
does not reveal the primary institutional purpose. In all
practical aspects, Regent is a graduate institution that
teaches various secular subjects from a religious viewpoint.
The prohibition in question under the Act and the Constitution
of Virginia does not proscribe teaching of otherwise secular
subjects from a religious viewpoint.
We hold that, with the exception of the Divinity School,
Regent is an institution “whose primary purpose is to provide
collegiate or graduate education and not to provide religious
training or theological education.” 4
4
The fact that the nonclinical M.A. degree in the School
of Counseling is designed to train students to work in a
church/ministry setting does not transform that particular
school into one whose “primary purpose” is religious training.
This degree program is only one of several in that department,
and it must be viewed in that context along with the various
21
In addition to particular concerns about use of the bond-
funded facilities by the School of Divinity 5 , appellees
maintain that Article I, § 16 of the Constitution of Virginia,
which they refer to as a “parallel provision” to the federal
Establishment Clause, is violated and that our prior holding
in Habel v. Indus. Dev. Auth., 241 Va. 96, 400 S.E.2d 516
(1991) (Liberty University is pervasively sectarian and its
participation in industrial bond financing violates the
Establishment Clause and Article I, § 16 of the Constitution
of Virginia) must be applied to invalidate the conduit bonds
proposed to be issued to Regent. Appellees are correct to
characterize Article I, § 16 of the Constitution of Virginia
as a “parallel provision” to the Establishment Clause for we
have always been informed by the United States Supreme Court
Establishment Clause jurisprudence in our construction of
Article I, § 16.
Because the Establishment Clause landscape is ever-
changing, we have not hesitated to reconsider prior
interpretation of our own Constitution. We noted in Miller v.
Ayres, 214 Va. 171, 198 S.E.2d 634 (1973)(“Miller II”), that
the United States Supreme Court had decided ten cases
involving state programs of financial aid to private
course offerings in order to determine the primary purpose of
the School of Counseling.
22
educational institutions since Miller v. Ayres, 213 Va. 251,
191 S.E.2d 261 (1972) (“Miller I”). See Miller II, 214 Va. at
180, 198 S.E.2d at 641. We stated without hesitation,
“[t]hese new decisions require a reexamination of our earlier
holding.” Id. Similarly, the multitude of Establishment
Clause cases decided by the United States Supreme Court since
Habel require reexamination of that prior holding. As our
analysis of current Establishment Clause requirements reveals,
Regent’s participation in the VCBA bond program does not
violate the Establishment Clause and similarly does not
violate Article I, § 16 of the Constitution of Virginia.
V. ESTABLISHMENT CLAUSE 6
A. THE STANDARD
In its most recent pronouncement on the subject, the
United States Supreme Court once again acknowledged the
uncertain and ever-changing landscape of its Establishment
Clause jurisprudence.
The Establishment Clause of the First
Amendment dictates that “Congress shall
make no law respecting an establishment of
religion.” In the over 50 years since
Everson [v. Bd. of Educ. of the Township of
Ewing, et al., 330 U.S. 1 (1947)], we have
consistently struggled to apply these
5
These concerns are separately addressed herein.
6
Our Establishment Clause analysis does not include
consideration of proposed bond financing of facilities to be
used by the School of Divinity. This question is analyzed
separately herein.
23
simple words in the context of governmental
aid to religious schools. As we admitted
in Tilton v. Richardson, 403 U.S. 672, 29
L.Ed.2d 790, 91 S.Ct. 2091 (1971), “candor
compels the acknowledgment that we can only
dimly perceive the boundaries of
permissible government activity in this
sensitive area.” 403 U.S. at 678 (plurality
opinion); see 403 U.S. at 671 (White, J.,
concurring in judgment).
Mitchell v. Helms, ___ U.S. ___, 120 S.Ct. 2530, 2540 (2000)
(plurality opinion).
Review of the entire panoply of Establishment Clause
cases is often unhelpful in a particular case because
adjudication of these sensitive issues is dependent upon the
context in which they are raised. Chief Justice Burger’s
observations for the Court in Walz v. Tax Comm’n, 397 U.S. 664
(1970), remain true today:
The Establishment and Free Exercise
Clauses of the First Amendment are not the
most precisely drawn portions of the
Constitution. The sweep of the absolute
prohibitions in the Religion Clauses may
have been calculated; but the purpose was
to state an objective, not to write a
statute. In attempting to articulate the
scope of the two Religion Clauses, the
Court’s opinions reflect the limitations
inherent in formulating general principles
on a case-by-case basis. The considerable
internal inconsistency in the opinions of
the Court derives from what, in retrospect,
may have been too sweeping utterances on
aspects of these clauses that seemed clear
in relation to the particular cases but
have limited meaning as general principles.
24
Id. at 668.
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court
recited its well known three-pronged test for Establishment
Clause analysis: “First, the statute must have a secular
legislative purpose; second, its principal or primary effect
must be one that neither advances nor inhibits religion;
finally, the statute must not foster ‘an excessive government
entanglement with religion.’ ” Id. at 612-13 (citations
omitted). Thereafter, in Agostini v. Felton, 521 U.S. 203
(1997), the Court reaffirmed the general principles used to
determine whether government aid violates the Establishment
Clause. After Agostini, the analysis still requires
determination “whether the government acted with the purpose
of advancing or inhibiting religion” and “whether the aid has
the ‘effect’ of advancing or inhibiting religion.” Id. at
222-23. Merging the analysis of excessive government
entanglement into the “primary effect” analysis, the Court
stated:
Regardless of how we have characterized the
issue, however, the factors we use to
assess whether an entanglement is
“excessive” are similar to the factors we
used to examine “effect.” That is, to
assess entanglement, we have looked to “the
character and purposes of the institutions
that are benefited, the nature of the aid
that the State provides, and the resulting
relationship between the government and
religious authority.”
25
Id. at 232 (quoting Lemon, 403 U.S. at 615).
Recent cases rarely involve claims of governmental action
purposefully advancing religion; consequently, after Agostini,
the focus of Establishment Clause analysis will most often be
upon the “primary effect” test. In that regard, the Court
articulated three criteria used to determine whether
government aid is permissible: “it does not result in
governmental indoctrination; define its recipients by
reference to religion; or create an excessive entanglement.”
Id. at 234. Finally, Agostini requires a determination
whether the government aid constitutes an “endorsement of
religion.” Agostini, 521 U.S. at 235. See also Mitchell, ___
U.S. at ___, 120 S.Ct. at 2560 (O’Connor, J., concurring).
Agostini overruled a prior decision in Aguilar v. Felton,
473 U.S. 402 (1985), involving not only the same government
program (Title I of the Elementary and Secondary Education Act
of 1965), but involving the same case which it revisited some
years later upon petition seeking relief from an injunction
pursuant to Federal Rule 60(b)(5). The Court in Aguilar
characterized the schools receiving aid as “pervasively
sectarian.” Id. at 411-12. Upon reconsideration of the case,
the Court focused upon the character of the aid involved and
whether “use of that aid to indoctrinate religion could be
26
attributed to the State.” Agostini, 521 U.S. at 230.
Declaring that “we have departed from the rule . . . that all
government aid that directly assists the educational function
of religious schools is invalid,” id. at 225, the Court
acknowledged that government aid to pervasively sectarian
schools had been previously approved:
[W]e have sustained programs that provided
aid to all eligible children regardless of
where they attended school. See, e.g.,
Everson v. Board of Ed. of Ewing, 330 U.S.
1, 16-18 (1947)(sustaining local ordinance
authorizing all parents to deduct from
their state tax returns the costs of
transporting their children to school on
public buses); Board of Ed. of Central
School Dist. No. 1 v. Allen, 392 U.S. 236,
243-244 (1968)(sustaining New York law
loaning secular textbooks to all children);
Mueller v. Allen, 463 U.S. 388, 398-399
(1983)(sustaining Minnesota statute
allowing all parents to deduct actual costs
of tuition, textbooks, and transportation
from state tax returns); Witters [v.
Washington Dept. of Servs. for Blind, 474
U.S. 481, 487-88 (1986)](sustaining
Washington law granting all eligible blind
persons vocational assistance); Zobrest [v.
Catalina Foothills Sch. Dist., 509 U.S. 1,
10 (1993)] (sustaining section of IDEA
providing all “disabled” children with
necessary aid).
Id. at 231. Of course in Agostini, the Court approved aid to
pervasively sectarian schools by permitting public school
teachers to provide remedial education to disadvantaged
children in parochial schools.
27
Upon cursory review, it would appear that Agostini
removed from consideration the analysis of the pervasively
sectarian nature of the institution receiving government aid.
The plurality in Mitchell certainly thought so when it said:
One of the dissent’s factors deserves
special mention: whether a school that
receives aid (or whose students receive
aid) is pervasively sectarian. The dissent
is correct that there was a period when
this factor mattered, particularly if the
pervasively sectarian school was a primary
or secondary school. But that period is
one that the Court should regret, and it is
thankfully long past.
Mitchell, ___ U.S. at ___, 120 S.Ct. at 2550. However,
without a fifth vote to command a majority, the plurality’s
obituary for analysis of pervasive sectarianism may be
premature. The concurrence of Justice O’Connor, joined by
Justice Breyer, suggests that the consideration of an
institution’s pervasively sectarian nature, although limited
in impact, remains appropriate.
Mitchell involved a challenge to a school aid program
described as a “close cousin” to the provision at issue in
Agostini. ___ U.S. at ___, 120 S.Ct. at 2537. Chapter 2 of
the Education Consolidation and Improvement Act of 1981, Pub.
L. 97-35, 95 Stat. 469, as amended, 20 U.S.C. §§ 7301-7373,
among other things, provides aid for certain instructional and
educational materials. Mitchell, ___ U.S. at ___, 120 S.Ct.
28
at 2537. Federal funds are provided to state and local
educational agencies which, upon application from both public
and private schools, purchases requested materials and loans
them to the requesting institution. Id. at ___, 120 S.Ct. at
2537. In Jefferson Parish, Louisiana, private schools,
including religious schools characterized by the district
court as pervasively sectarian, participated in the program of
government aid. See id. at ___, 120 S.Ct. at 2538.
In Mitchell a majority of six justices approved aid to
schools that are indisputably pervasively sectarian. The
plurality opinion reaffirmed the Agostini refinement to the
Lemon test and, because the secular purpose of the program and
any excessive government entanglement were not the subject of
controversy, focused entirely upon the two remaining criteria
of the Agostini “effect” test: whether the program results in
governmental indoctrination, and whether it defines its
recipients by reference to religion.
Concluding that the aid did not have “the effect of
advancing religion,” the plurality stated, “[the aid] does not
result in governmental indoctrination, because it determines
eligibility for aid neutrally, allocates that aid based on the
private choices of the parents of schoolchildren, and does not
provide aid that has an impermissible content. Nor does [the
program] define its recipients by reference to religion.” Id.
29
at ___, 120 S.Ct. at 2552. For the plurality, “the inquiry
into the recipient’s religious views required by a focus on
whether a school is pervasively sectarian is not only
unnecessary but also offensive.” Id. at ___, 120 S.Ct. at
2551.
Justice O’Connor, the author of the majority opinion in
Agostini, concurred in the result of Mitchell but wrote
separately because the plurality opinion was “of unprecedented
breadth for the evaluation of Establishment Clause challenges
to government school-aid programs.” Id. at ___, 120 S.Ct. at
2556 (O’Connor, J., concurring). Summarizing her concerns
with the plurality, Justice O’Connor stated:
Reduced to its essentials, the plurality’s
rule states that government aid to
religious schools does not have the effect
of advancing religion so long as the aid is
offered on a neutral basis and the aid is
secular in content. The plurality also
rejects the distinction between direct and
indirect aid, and holds that the actual
diversion of secular aid by a religious
school to the advancement of its religious
mission is permissible.
Id.
Noting the importance of neutrality, private choices, and
secular content, Justice O’Connor emphasized that other
factors must be considered in the evaluation of school aid
programs. These factors include whether the aid is
supplemental to regular curricula, whether state funds reach
30
religious school’s coffers, whether the aid is actually
diverted to religious activities, and whether the aid
constitutes an endorsement of religion.
Although never directly responding to the plurality’s
announcement of the death of “pervasively sectarian analysis,”
the concurring opinion makes it clear that such concerns are
still alive. Justice O’Connor states:
I also disagree with the plurality’s
conclusion that actual diversion of
government aid to religious indoctrination
is consistent with the Establishment
Clause. . . . [O]ur decisions “provide no
precedent for the use of public funds to
finance religious activities.” . . .
[A]ctual diversion is constitutionally
impermissible.
Id. at ___, 120 S.Ct. at 2558 (citations omitted).
In the context of her concerns over actual diversion of
government aid to religious activity, Justice O’Connor
favorably cites Justice Kennedy’s concurring opinion in Bowen
v. Kendrick, 487 U.S. 589 (1988), where the remand to the
district court is explained as follows: “The only purpose of
further inquiring whether any particular grantee institution
is pervasively sectarian is as a preliminary step to
demonstrating that the funds are in fact being used to further
religion.” Mitchell, ___ U.S. at ___, 120 S.Ct. at 2558
(O’Connor, J., concurring)(citing Bowen, 487 U.S. at 624
(Kennedy, J., concurring)).
31
Clearly, the United States Supreme Court has approved
some forms of aid to pervasively sectarian institutions. See,
e.g., Mitchell, ___ U.S. ___, 120 S.Ct. 2556 (upholding funds
distributed by the federal government to state and local
governmental agencies, which in turn lend educational
materials and equipment to public and private schools,
including parochial schools), Agostini, 521 U.S. at 234-35
(upholding a federally funded program providing supplemental,
remedial instruction by public school teachers to
disadvantaged children in parochial schools), Zobrest, 509
U.S. at 10 (upholding a state-funded sign-language interpreter
being furnished to a disabled child enrolled in a pervasively
sectarian school), Witters, 474 U.S. at 488-89 (sustaining
Washington law granting all eligible blind persons vocational
assistance and permitting use of grant money for program at a
Bible college), Mueller, 463 U.S. at 398-99 (sustaining
Minnesota statute allowing all parents to deduct actual costs
of tuition, textbooks, and transportation from state tax
return, including expenses associated with their children’s
attendance at parochial schools), Allen, 392 U.S. at 243-44
(sustaining New York law loaning secular textbooks to all
children, including children at parochial schools), and
Everson, 330 U.S. at 16-18 (sustaining local ordinance
authorizing all parents to deduct on their state tax returns
32
the costs of transporting their children to public or private
schools on public buses).
The governmental aid in Mitchell, Agostini, Zobrest,
Witters, Mueller, Allen and Everson involved pervasively
sectarian schools. In these cases, it was the nature of the
aid that was dispositive of the Establishment Clause question,
not the nature of the institution. Upon consideration of
Agostini, the plurality and concurring opinions in Mitchell,
and the several cases cited above, we conclude that both the
nature of the aid and the nature of the institution receiving
that aid must be appropriately considered and balanced to
determine whether the Establishment Clause prohibits a
particular school aid program.
In applying this test, it is helpful to examine Hunt v.
McNair, 413 U.S. 734 (1973), a case remarkably similar to the
case before us. In Hunt, the United States Supreme Court
entertained a challenge to the South Carolina Educational
Facilities Authority Act. 7 The legislative purpose for the
South Carolina statute was “ ‘to assist institutions for
higher education in the construction, financing and
refinancing of projects . . . primarily through the issuance
of revenue bonds.’ ” 413 U.S. at 736 (quoting S.C. Code Ann.
7
S.C. Code Ann. § 22-41, an Act similar to Virginia’s
Educational Facilities Authority Act.
33
§ 22-41.4 (Supp. 1971)). The South Carolina Act, like
Virginia’s, explicitly provided that the bonds shall not be
obligations of the state directly or indirectly. See id. at
737 (quoting S.C. Code Ann. § 22-41.10 (Supp. 1971)). As in
Virginia, none of the general revenues of South Carolina was
used to support a particular project. See id. at 738.
Justice Powell, writing for the Court in Hunt, succinctly
characterized the nature of the aid afforded the college:
The advantage of financing educational
institutions through a state-created
authority derives from relevant provisions
of federal and South Carolina state income
tax laws which provide in effect that the
interest on such bonds is not subject to
income taxation. The income-tax-exempt
status of the interest enables the
Authority, as an instrumentality of the
State, to market the bonds at a
significantly lower rate of interest than
the educational institution would be forced
to pay if it borrowed the money by
conventional private financing.
Id. at 738-39 (footnote omitted).
Considering the three-pronged test articulated in Lemon,
the Court in Hunt found that the “purpose of the statute is
manifestly a secular one.” Id. at 741. Also, the Court
concluded that periodic inspection of the facilities to ensure
compliance with restrictive use did not threaten excessive
governmental entanglement with religion. See id. at 745-49.
In consideration of the second prong of the Lemon test, the
34
Court, citing Walz and Tilton, noted: “[w]hatever may be its
initial appeal, the proposition that the Establishment Clause
prohibits any program which in some manner aids an institution
with a religious affiliation has consistently been rejected.”
Hunt, 413 U.S. at 742-43.
Upon review of the sparse record in that case, the Court
observed that there was “no basis to conclude that the
College’s operations are oriented significantly towards
sectarian rather than secular education.” Id. at 744. The
Court further stated, “we are satisfied that implementation of
the proposal will not have the primary effect of advancing or
inhibiting religion.” Id. at 745. Appended to that statement
at the end of the discussion of the “primary effect test,” the
Court specifically declined to address the very issue
presented in the case before us today. Id. at 745 n.7.
In footnote seven, the Court suggested that even if an
institution is pervasively sectarian, the aid in question may
be so unique that the provision of the aid does not result in
“the primary effect” of advancing or inhibiting religion. The
footnote in its entirety states as follows:
The “state aid” involved in this case is of
a very special sort. We have here no
expenditure of public funds, either by
grant or loan, no reimbursement by a State
for expenditures made by a parochial school
or college, and no extending or committing
of a State’s credit. Rather, the only
35
state aid consists, not of financial
assistance directly or indirectly which
would implicate public funds or credit, but
the creation of an instrumentality (the
Authority) through which educational
institutions may borrow funds on the basis
of their own credit and the security of
their own property upon more favorable
interest terms than otherwise would be
available. The Supreme Court of New Jersey
characterized the assistance rendered an
educational institution under an act
generally similar to the South Carolina Act
as merely being a “governmental service.”
Clayton v. Kervick, 56 N.J. 523, 530-531,
267 A.2d 503, 506-507 (1970). The South
Carolina Supreme Court, in the opinion
below, described the role of the State as
that of a “mere conduit.” [Hunt v. McNair,
258 S.C. 97, 107, 187 S.E.2d 645, 650
(1972), aff’d, 413 U.S. 734 (1973)].
Because we conclude that the primary effect
of the assistance afforded here is neither
to advance nor to inhibit religion under
Lemon and Tilton, we need not decide
whether, as appellees argue, Brief for
Appellees 14, the importance of the tax
exemption in the South Carolina scheme
brings the present case under Walz v. Tax
Comm’n, 397 U.S. 664 (1970), where this
Court upheld a local property tax exemption
which included religious institutions.
Id. at 745.
In Walz, an owner of real estate in New York sought an
injunction in state court to prevent the New York City Tax
Commission from granting property tax exemptions to religious
organizations for properties used solely for religious
worship. See 397 U.S. at 666. The essence of the complaint
was that the grant of a tax exemption to church property
indirectly required taxpayers to make a contribution to
36
religious bodies and thereby violated the Establishment
Clause. See id. at 667.
Concluding that the legislative purpose of the property
tax exemption was “neither the advancement nor the inhibition
of religion; [and] neither sponsorship nor hostility,” id. at
672, the Court stated:
Granting tax exemptions to churches
necessarily operates to afford an indirect
economic benefit and also gives rise to
some, but yet a lesser, involvement than
taxing them. In analyzing either
alternative the questions are whether the
involvement is excessive, and whether it is
a continuing one calling for official and
continuing surveillance leading to an
impermissible degree of entanglement.
Obviously a direct money subsidy would be a
relationship pregnant with involvement.
* * *
The grant of a tax exemption is not
sponsorship since the government does not
transfer part of its revenue to churches
but simply abstains from demanding that the
church support the state. . . . There is no
genuine nexus between tax exemption and
establishment of religion. . . . The
exemption creates only a minimal and remote
involvement between church and state and
far less than taxation of churches.
Id. at 674-75. Comparing provision of police and fire
protection to the granting of tax exempt status, the Court
noted that:
But if as in Everson buses can be provided
to carry and policemen to protect church
school pupils, we fail to see how a broader
37
range of police and fire protection given
equally to all churches, along with
nonprofit hospitals, art galleries, and
libraries receiving the same tax exemption,
is different for purposes of the Religion
Clauses.
Id. at 671.
In the case before us, appellees do not contend and we do
not find that the VCBA purports to act with the purpose of
advancing or inhibiting religion, or that the bond program
results in excessive entanglement. Consequently, as in
Agostini and Mitchell, we must consider whether the aid
results in governmental indoctrination, whether recipients of
the aid are defined by reference to religion, and whether the
government aid program constitutes an endorsement of religion.
As the Court did in Hunt, we must first determine whether
Regent is pervasively sectarian. If Regent is pervasively
sectarian then, considering Agostini, Mitchell, and a host of
other fact-specific cases, we must determine whether the
unique nature of the aid is nonetheless permitted without
offending the Establishment Clause.
B. IS REGENT PERVASIVELY SECTARIAN?
Assessment of whether an institution is pervasively
sectarian 8 requires consideration of “a general picture of the
8
The phrase “pervasively sectarian” was first utilized in
Hunt. “Pervasive” describes that which “pervades or tends to
38
institution, composed of many elements.” Roemer v. Bd. of
Pub. Works, 426 U.S. 736, 758 (1976). Although the Supreme
Court has relied on several common factors in making this
determination, no one distinct formula has emerged. 9 In
pervade.” Merriam-Webster’s Collegiate Dictionary 868 (10th
ed. 1999). “Pervade” is defined as “diffused throughout every
part of.” Id. “Sectarian” means “of, or relating to, or
characteristic of a sect.” Id. at 1056. Among the
definitions of “sect” are “a religious denomination” and “a
group adhering to a distinctive doctrine or leader.” Id.
9
In Columbia Union Coll. v. Clarke, 159 F.3d 151 (4th Cir.
1998), cert. denied, 527 U.S. 1013 (1999), the United States
Court of Appeals for the Fourth Circuit held that the District
Court’s conclusion on summary judgment that the subject
college was pervasively sectarian rested on an incomplete
record and that the District Court failed to consider the
facts before it in the light most favorable to the college.
In its analysis, the majority of the court identified four
general areas of inquiry encompassing the characteristics of a
pervasively sectarian college as identified by the Supreme
Court in Roemer, Tilton, and Hunt: “(1) does the college
mandate religious worship, (2) to what extent do religious
influences dominate the academic curriculum, (3) how much do
religious preferences shape the college’s faculty hiring and
student admission processes, and (4) to what degree does the
college enjoy ‘institutional autonomy’ apart from the church
with which it is affiliated.” Columbia Union, 159 F.3d at 163
(citing Roemer, 426 U.S. at 755-58; Hunt, 413 U.S. at 743-44;
Tilton, 403 U.S. at 685-86). The court noted that none of
these factors “in isolation is dispositive.” 159 F.3d at 163.
The dissent summarized these categories differently, noting
that consideration must be given to:
[T]he extent to which the religious institution is
affiliated with or controlled by a church, see
[Roemer, 426 U.S.] at 755; Hunt, 413 U.S. at 743;
whether religious indoctrination is one of the
institution’s purposes, see Roemer, 426 U.S. at 755;
whether the school is characterized by an atmosphere
of academic freedom, see id. at 756; whether the
institution encourages or requires prayer, see id.
at 756-57; whether there are religious
39
identifying characteristics of a pervasively sectarian
institution, the Court has considered: (1) whether the
institution is formally affiliated with a church and the
amount of institutional autonomy it enjoys apart from the
church with which it is affiliated; 10 (2) whether one of the
purposes of the institution is the indoctrination of religion
and whether the institution’s activities reflect such a
purpose or exert dominating religious influence over the
academic curriculum; 11 (3) whether the institution reflects an
atmosphere of academic freedom; 12 (4) the institution’s policy
on classroom prayer or other evidence of religion entering
into elements of classroom instruction; 13 (5) the existence and
utilization of religious qualifications for faculty membership
qualifications for faculty hiring or student
admissions, see id. at 757-58; Hunt, 413 U.S. at
743-44; and the religious makeup of the student
population, see Roemer, 426 U.S. at 757-58; Hunt,
413 U.S. at 744.
Columbia Union, 159 F.3d at 174 (Wilkinson, C.J., dissenting).
10
See, e.g., Roemer, 426 U.S. at 755; Hunt, 413 U.S. at
743; Tilton, 403 U.S. at 686.
11
See, e.g., Roemer, 426 U.S. at 755; Tilton, 403 U.S. at
686.
12
See, e.g., Roemer, 426 U.S. at 756; Tilton, 403 U.S. at
686-87.
13
See, e.g., Roemer, 426 U.S. at 756-57.
40
or student admission; 14 and (6) the religious composition of
the student population and faculty. 15
Our examination of Regent pursuant to the Establishment
Clause and Article I, § 16 of the Constitution of Virginia
requires consideration of whether the institution is
pervasively sectarian. While Regent (with the exception of
the School of Divinity) may not have a primary purpose of
religious training or theological education, upon
consideration of the factors utilized to determine whether an
institution is pervasively sectarian, we hold that Regent is
such an institution. The lengthy description of Regent in
this opinion amply and conclusively supports this
determination.
C. REGENT’S PARTICIPATION IN THE BOND FINANCING PROGRAM
Having established that Regent is a pervasively sectarian
institution, we must consider whether it nonetheless is
permitted to participate in the VCBA bond program without
offending the Establishment Clause. We turn to the remaining
interrelated questions unique to this case: whether the aid
results in government indoctrination, whether the aid program
14
See, e.g., Roemer, 426 U.S. at 757; Hunt, 413 U.S. at
743-44.
15
See, e.g., Roemer, 426 U.S. at 757-58; Hunt, 413 U.S.
at 744; Tilton, 403 U.S. at 686.
41
defines its recipients by reference to religion, and whether
the aid program constitutes an endorsement of religion.
It is important to distinguish at the outset the unique
nature of the governmental aid involved in the VCBA bond
program. Because the bond proceeds are the funds of private
investors, the bond proceeds are not governmental aid received
by the institution. No taxpayer dollars are transferred
directly or indirectly to a participating institution. No
taxpayer dollars are pledged or utilized as surety for bond
obligations. Unlike the aid programs reviewed in many of the
cases that define Establishment Clause jurisprudence, there is
no government money utilized for construction or maintenance
of buildings, for provision of bus transportation, for
reimbursement of educational expenses, for provision of
teachers on or off private school premises, or for the
provision of books or materials of any kind.
The aid does not involve usage of governmental funds and,
in the traditional sense in which the terms have been used,
the terms “direct aid” or “indirect aid” are simply
inapplicable. The Court acknowledged this unique difference
in footnote seven of its opinion in Hunt. The nature of this
aid is properly defined as the granting of tax exempt status
to the bonds which has the incidental result of permitting a
qualifying institution to borrow funds at an interest rate
42
lower than conventional private financing. The South Carolina
Supreme Court in Hunt, 187 S.E.2d at 650, characterized the
role of the state as a “mere conduit,” and the New Jersey
Supreme Court in a similar case called the bond provisions a
“governmental service.” Clayton, 267 A.2d at 507.
The program is available to all qualifying institutions
of higher education in the Commonwealth, without regard to
religious affiliation. There is no “financial incentive to
undertake religious indoctrination” in the provision of this
unique aid because:
This incentive is not present . . . where
the aid is allocated on the basis of
neutral, secular criteria that neither
favor nor disfavor religion, and is made
available to both religious and secular
beneficiaries on a nondiscriminatory basis.
Under such circumstances, the aid is less
likely to have the effect of advancing
religion.
Agostini, 521 U.S. at 231. See Widmar v. Vincent, 454 U.S.
263, 274 (1981).
It cannot be disputed that an interest rate or tax
exemption has exclusively secular content. Because no
government funds flow to Regent, it cannot be said that
government funds are utilized for indoctrination of religious
belief or that there is diversion of government funds for
43
religious activity or that government funds are utilized for
any programs, “supplemental” or otherwise.
Additionally, Regent receives these funds because of the
genuinely independent choices of investors. Only the purchase
money of private investors flows to Regent. If no private
investors purchase bonds issued on behalf of Regent, no funds
flow to Regent. Thirty-five such bond issues preceded the
proposed bond issue on behalf of Regent. An investor’s choice
between VCBA bond issues or between VCBA bonds and other
securities is a choice presumably based upon market factors
and personal circumstances. In any event, such a choice
“cannot be attributed to state decision making.” Zobrest, 509
U.S. at 10; see also Witters, 474 U.S. at 493. As Justice
O’Connor stated in Mitchell:
[W]hen government aid supports a school’s
religious mission only because of
independent decisions made by numerous
individuals to guide their secular aid to
that school, “no reasonable observer is
likely to draw from the facts . . . an
inference that the State itself is
endorsing a religious practice or belief.”
Witters, supra, at 493 (O’CONNOR, J.,
concurring in part and concurring in
judgment). Rather, endorsement of the
religious message is reasonably attributed
to the individuals who select the path of
the aid.
___ U.S. at ___, 120 S.Ct. at 2559 (O’Connor, J. concurring).
44
The issuance of VCBA bonds on behalf of Regent does not
result in governmental indoctrination because it determines
eligibility for aid neutrally. Any funds that Regent receives
are from the private choices of investors. The aid has no
impermissible content. No government funds ever reach
Regent’s coffers. No government funds are used or pledged for
any purpose and “this carefully constrained program also
cannot reasonably be viewed as an endorsement of religion.”
Agostini, 521 U.S. at 235. We hold that, with the exception
of the School of Divinity, allowing Regent’s participation in
the VCBA bond financing program does not offend the
Establishment Clause.
VI. FREE SPEECH
Because we find that inclusion of Regent in the VCBA bond
financing program is permissible under the Act and the
Constitution of Virginia and further, that the Establishment
Clause does not preclude Regent’s participation, it is not
necessary to resolve the free speech issues raised by the
Authority. See Rosenberger v. Rector & Visitors of Univ. of
Virginia, 515 U.S. 819 (1995); Columbia Union, 159 F.3d 151.
VII. THE DIVINITY SCHOOL
Although we hold that Regent’s general participation in
the VCBA bond program does not violate Article I, § 16 of the
Constitution of Virginia, we find the specific language of
45
Article VIII, § 11 and the specific terms of the Act prohibit
use of bond-financed facilities by the School of Divinity.
The constitutional provision states in pertinent part that aid
may not be given for facilities “to provide religious training
or theological education.”
Additionally, the VCBA Resolution approving the bond
issue mandates that no bond proceeds will be used to provide
facilities for the School of Divinity. Given the acknowledged
mission and purpose of the School of Divinity, we find that it
would violate the Act and Article VIII, § 11, as well as the
VCBA Resolution to allow use of bond-financed facilities by
the Regent School of Divinity.
Although the trial court never reached the issue, Dr.
Selig proposed that Regent make a pro-rata equity contribution
for the portion of the Alexandria building utilized by the
School of Divinity. If pro-rata equity contribution proved
unacceptable, Dr. Selig proffered that Regent “would lease
space out elsewhere.” We need not consider whether the pro-
rata equity contribution proposal violates the Act or Article
VIII, § 11, because we find that the terms of the VCBA
Resolution do not provide for it. Pursuant to the Resolution,
bond-financed facilities may not be utilized by the School of
Divinity.
VIII. CONCLUSION
46
With the exception of the School of Divinity, we hold
that inclusion of Regent in the VCBA bond financing program
does not violate the Act, the Constitution of Virginia, or the
Establishment Clause. We hold that Article VIII, § 11 and the
terms of the Act prohibit utilization of bond-financed
facilities by the School of Divinity and that the VCBA
Resolution does not provide for pro-rata equity contribution
for use by the School of Divinity.
We will reverse the order of the trial court refusing
validation of the bonds and remand for entry of an order
validating the bonds consistent with this opinion.
Reversed and remanded.
JUSTICE KOONTZ, with whom JUSTICE KEENAN joins, concurring in
part and dissenting in part.
Beyond question, Regent University is a nonprofit
“private Christian university” that benefits the people of
this Commonwealth by providing them the opportunity to learn
and to develop their intellectual capacities, Code § 23-30.39,
through eight accredited colleges offering twenty graduate
degrees. However, the quality of the educational experience
provided by Regent is not at issue here.
While Regent rightfully enjoys a reputation for
educational excellence, the record demonstrates that Regent
seeks to educate its students in strict conformity with its
47
adopted Mission Statement. According to this Statement,
Regent “exists to bring glory to God the Father and His Son
Jesus Christ through the work of the Holy Spirit[,] . . . to
provide an exemplary graduate education from biblical
perspectives to aspiring servant leaders in pivotal
professions”[, and] to be a leading “center of Christian
thought and action.” Indeed, as noted in the majority
opinion, Regent was founded to “train mature men and women for
the challenge of representing Christ in their professions,”
incorporated “to recover the Christian heritage of our
nation,” and has the “ultimate purpose” to “glorify[] God and
His Son, Jesus Christ.”
The majority concludes that Regent is a pervasively
sectarian institution and that, for the reasons stated in the
majority’s opinion, the use of bond-financed facilities by
Regent’s School of Divinity is prohibited. I concur in these
conclusions.
I disagree, however, with the majority’s conclusion that
Regent otherwise qualifies to participate in the revenue bond
program under consideration as an institution of higher
education “whose primary purpose is . . . not to provide
religious training or theological education.” Code § 23-
30.41(e). My conclusion to the contrary is based on three
factors. First, the majority misstates the standard of
48
review, and thereby fails to apply the law to the evidence
viewed in the light most favorable to Lynn and the other
appellees, the prevailing parties at trial. Second, the
majority violates established rules of statutory construction
and effectively rewrites Code § 23-30.41(e), by determining
that the statutory phrase “a nonprofit educational institution
. . . whose primary purpose is . . . not to provide religious
training or theological education” can be limited to
institutions or departments within institutions that prepare
students for specific religious vocations. Third, the
majority bases its definition of this statutory phrase on
source materials that are taken out of context.
Initially, I agree that the issue whether Regent is
eligible for participation in the revenue bond program under
the Educational Facilities Authority Act, Code §§ 23-30.39
through -30.58, is a mixed question of law and fact. However,
contrary to the conclusion reached by the majority, the record
reveals that certain material facts are in dispute. Thus, we
are compelled to give deference to the factual findings of the
trial court which “sat as the fact finder and, insofar as the
evidence is in conflict, we view the facts and all reasonable
inferences raised by the evidence in the light most favorable
to [the prevailing party] and consider whether the trial court
correctly applied the law thereto.” Carmody v. F. W.
49
Woolworth Co., 234 Va. 198, 201, 361 S.E.2d 128, 130 (1987);
Bassett Furniture v. McReynolds, 216 Va. 897, 899, 224 S.E.2d
323, 324 (1976).
As a mixed question of law and fact, the determination of
Regent’s primary purpose presented factual issues for the
trial court’s consideration. There was a clear conflict in
the evidence presented by the VCBA, namely, between the
content of the numerous exhibits and the trial testimony of
Regent Provost Dr. William George Selig. Many of the exhibits
were facially in conflict with Dr. Selig’s testimony. The
trial court resolved that conflict against the VCBA by its
finding that Regent’s primary purpose is religious training.
The fact that the court’s decision “was not based on any
credibility findings with regard to the witnesses” does not
reflect an absence of conflict in the evidence, but explains
the court’s view that the witnesses’ testimony did not lack
credibility. Thus, the court considered all the testimony and
exhibits in reaching its ultimate determination, which is
supported by evidence in the record.
Notably absent in the majority opinion is significant
evidence that supports the trial court’s finding. The
following evidence was presented concerning Regent’s colleges,
academic freedom policy, and faculty and staff.
50
The College of Communications and the Arts is designed to
“develop persons who think as Christians about communication
studies.” Its program in the School of Cinema-Television and
Theatre Arts “is dedicated to equipping communication
professionals with a biblically based perspective in the mass
media and theatre arts.” Its Script and Screenwriting program
is designed to “prepare graduates to become leaders who will
be creative communicators through their script and
screenwriting and their ability to implement the truths and
principles of the Word of God.” “The program is administered
and shaped for the purpose of helping students integrate the
Word of God in their chosen profession.” Its Ph.D. program
involves “an intense effort to develop scholars who are able
to integrate a Christian worldview with their chosen
discipline within communication as they teach, conduct
research and practice their professions.” Prospective
students must submit a writing sample “indicating [an] ability
to integrate a Christian worldview with the field of
communication and the arts and directly relat[ing] that topic
to the Word of God and/or the Judeo-Christian worldview.” The
school looks for “students who closely identify with
[Regent’s] mission of leadership—Christian Leadership.”
The School of Counseling (the school) seeks to help
students “synergize personal faith with practice in public,
51
private, academic, and corporate arenas,” and is “the only
evangelical program of its kind on the East Coast.” The
faculty of the school is “united by a common commitment to a
Christian worldview.” The school’s programs “embody a model
of Christian counseling[,] . . . based upon scriptural
understanding of human nature.” The school “endeavors to
provide leadership integration of sound clinical procedure and
biblically based values in program development and health
service provision.” A “distinctive” feature of its programs
is “the integration of counseling knowledge, skills, and
strategies with biblical foundations and faith practices.”
The school summarizes this as follows:
[S]ince there is no agreed-upon definition regarding
the use of faith within the counseling process, we
present integration as a process rather than a
separate course or series of techniques.
Integration begins in our own Christian walk. Our
programs give additional tools and guides for the
process and, hopefully, plant seeds that continue to
grow and mature long after the degree is obtained.
We intentionally teach faith principles as
integrated within counseling practice, recognizing
that in an academic setting this encounter may be
artificial. A student’s understanding and knowledge
of integration brings fruition in a counseling
practice setting with continued processional and
spiritual maturation and experience.
Biblical Foundations
We believe that God exists, is the source of all
truth, and is a just, loving, compassionate
Creator and Redeemer who calls us to relationship
with Himself and others. Theory and practice in
the field of counseling are taught in conjunction
52
with application of biblical principles and
values. Students are encouraged to study in such
theological areas as hermeneutics, systematic
theology, Christian ethics, the nature of God and
man, and the use of biblical principles and
Christian disciplines in the counseling setting.
The school offers three degrees: a clinical masters degree
(M.A.), a nonclinical masters degree (M.A.), and a doctor of
psychology degree (Psy.D.). The clinical M.A. “combines
contemporary counseling techniques and theories with a solid
biblical foundation for a spiritual balance in the counseling
approach.” The nonclinical M.A. is “designed to offer human
relations training to clergy and others active in Christian
ministry who desire counseling skills.” “The purpose of this
nonclinical track is to provide training and practice in
interpersonal skills using a foundation of biblical human
nature.” “The goal of the program is not to develop clinical
professionals, but to train students who seek to help others
within a church/ministry setting.” (Emphasis added).
Finally, the doctorate program has “an integrative approach,”
that calls for the “integration of faith and practice.”
Courses offered by the school include:
Integrative Issues in Counseling[:] An
exploration of the possibilities and limits for
integrating various psychological theories and
Christian faith in counseling. Students will
review and assess previous models for integration
as a step toward developing their own approach to
integrating theory and Christian faith in
clinical practice.
53
* * *
Hermeneutics and Application[:] This course
analyzes and synthesizes principles of biblical
hermeneutics and psychological practice.
Students are taught basic skills in the inductive
method of observing, interpreting and applying
the Christian Scriptures. As a means to this
end, an intensive inductive study is made of the
Gospel of Mark (chapters 1-3). Other passages
from the Bible are considered as they address
areas of therapeutic application for various
psychological problems and disorders. Role-play
and demonstration of application of skills are
analyzed, critiqued and synthesized.
* * *
Traditions in Christian Healing: An Integrated
Approach[:] A holistic Christological approach to
exploring and reconsidering the gifts and graces
of God for healing the various aspects of the
human person. An integrated approach will
include a biblically based analysis and synthesis
of historical Christian traditions pertaining to
healing and deliverance as these relate to the
practice of counseling.
* * *
Clinical Practica[:] A supervised clinical
practicum experience in an appropriate work
environment for six semesters for two credits per
semester. Students will learn how to integrate
their Christian worldview and practice with the
theory and practice of psychology.
The School attributes the “ultimate goal” of counseling to be
the patient’s “maturation in the image of Christ,” and it
seeks to produce graduates who “reflect the character of
Christ within their professional involvements.”
“The primary mission of the Regent University School of
Education is to prepare leaders from a biblical perspective in
54
order that they might significantly impact education
worldwide.” Its “programs are based on time-honored biblical
standards,” and its faculty have a “worldview based upon a
core of biblical beliefs.” Through the program, “students
learn how to integrate research-supported concepts and skills
with a biblical worldview.” The “Christian School Program” of
the School of Education “prepares Christian school teachers
and administrators to educate toward God’s expectations for
Holy Nation citizenship (I Peter 2:9).” This program offers
classes such as:
Christian Heritage[:] This course develops the
theme of holy nation citizenship (I Peter 2:9)
and its implications for Christian education. It
provides the purpose and outcomes for Christian
education using the subject matters of Biblical
text, Christian history, Christian classics, and
the skills of logic and rhetoric. . . .
Hermeneutics in Education[:] Students will learn
to use inductive Bible study methods and apply
them to educationally relevant questions.
Additionally, students will learn how to teach
Biblical content to learners of various ages.
Biblical Integration/Apologetics[:] This course
focuses on the integration of Biblical content in
the student’s personal and professional life.
Students will examine methods, models and
curriculum examples of personal and professional
Biblical Integration. Students will also write a
sample-integrated curriculum.
Regent’s School of Business’ mission is to “transform
society through Christian leadership” and to prepare its
students “to build dynamic organizations that provide life-
improving products and services in a way that points to the
55
life-giver, Jesus Christ [through] servant-leadership (Matthew
20:20-28).” The materials for the School of Business state
that it “desires to admit students” who share the school’s
mission and who “believe God called them to lead others in
business and management for the glory of God.” The school
attempts to “[i]mpart graduate-level knowledge and skills
within a biblical world-view, . . . [i]mpart a balanced view
of the Christian life[, and] [h]elp students develop life
plans that are consistent with God’s call on their lives and
good stewardship of their gifts and talents.” Its masters in
business administration program and masters in management
program in the nonprofit management track are designed to
prepare students to “[i]mplement a comprehensive plan for
[their lives] which relates spirituality to work in a way that
glorifies Christ,” and to “[h]elp others grow, develop and
increase productivity and improve people skills using biblical
principles in the power of the Holy Spirit.” In these
programs, students are required to take six credits of
electives that may come from the School of Divinity, and may
include courses such as “Salvation, The Holy Spirit &
Christian Living,” and “Birth of the Theocratic Nation.”
Regent’s other schools also reflect a strongly integrated
Christian viewpoint. Regent’s School of Government is
premised on the view that “[t]he United States of America is a
56
nation founded upon biblical principles,” and it is “the goal
of the Robertson School of Government that this heritage be
restored, renewed and enhanced in America, and that this
heritage also be planted and nurtured in other nations.”
Regent’s Center for Leadership Studies is self-described as
the “premier leadership-training center for the Christian
world,” and it is founded on a “framework grounded in biblical
truths.” Scripture is integrated into the Law School
curriculum because “a lot of law has come from a biblical
perspective.”
Regent’s policy provides that academic freedom is defined
in a “context of standards or norms” including:
1. God is the source of all truth. The
Scriptures are the written expression of truth
and the revealed will of God. There is also
natural revelation. Both types of revelation
contribute to our understanding of truth.
2. Academic freedom functions within Regent
University’s mission statement and its statement
of faith. Specifically, within the mission
statement, the faculty member takes the role of
being a Christian leader in order to model
Christian leadership to students. Academic
freedom serves to make the university a “leading
center of Christian thought and action.”
Regent’s vision, “. . . to transform society by
affirming and teaching principles of truth,
justice and love, as described in the Holy
Scriptures, embodied in the person of Jesus
Christ, and enabled through the power of the Holy
Spirit,” can be achieved only if faculty
demonstrate these principles in the classroom.
57
Regent’s policy provides that “research efforts must be guided
by three sources of criteria: the Holy Bible, civil laws and
statutes, and the mission of Regent University.”
With respect to its curriculum, each faculty member at
Regent is required to include in the syllabus for each class a
“description of how the Christian faith and the Bible will be
incorporated into the course.” At Regent, “[i]t is desirable
that all prospective faculty be proficient in effectively
integrating their faith and learning,” and proficiency may be
demonstrated “by submitting a paper of an integrative nature
or developing course materials that demonstrate appropriate
integrative skills and understanding. The dean will review
these materials and may consult with a member of the School of
Divinity.” Those faculty members who do not demonstrate this
proficiency are required to obtain it within three years of
hiring by completing one or more of the following activities:
a prescribed course of study in “Christian doctrine and/or
hermeneutics offered by the School of Divinity, a prescribed
reading list on doctrine, hermeneutics and integration, or a
lecture and discussion series offered jointly by the School of
Divinity and other schools within the University.” Dr. Selig
conceded that faculty are expected to “hold tight” to the
Statement of Faith, “understand[] the relation between what
they teach and what they believe . . . starting, . . . from
58
the Mission Statement or Statement of Faith, and . . . teach
students from that perspective.”
Regent hires only Christian faculty and staff. Faculty
and staff are required to agree with and adhere to Regent’s
Statement of Faith. Faculty applicants must submit a
statement regarding their “conversion, Christian commitment,
and . . . acquaintance with the present-day renewal movement
which emphasizes the gifts, fruits and ministries of the Holy
Spirit.” This Statement is reviewed by a University official
to determine whether an interview is appropriate. Dr. Selig
testified that this review is designed to ensure that the
applicant adheres to Regent’s characterization of
Christianity:
[W]e have had people who have applied who said
that they were of a Christian persuasion, but in
reading it, we find that they’re not of a
Christian persuasion, not what we would call a
Christian persuasion. . . . We have people who
have applied who say they’re Christians but have
many gods, and that’s not what we describe as
Christian. . . . We’d rather not have this
person arrive here and find out that they didn’t
fit.
Although Dr. Selig testified that faculty members are
“not required” to attend chapel, and that no punitive
sanctions are taken against persons who do not show up for
these services, he conceded that Regent “strongly encourages”
chapel attendance. According to Regent’s Faculty Handbook,
59
Staff Handbook, Faculty Application, and Staff Application, it
is "imperative that Regent University faculty, staff and
students . . . maintain an exemplary and involved lifestyle
including regular church attendance.” The Employee Handbook
states:
Because the purpose of the University is to serve
and to glorify the Lord Jesus Christ, it is
essential that all members of the University
community approach Him as a body to seek His
guidance, strength and blessings. Therefore, for
approximately thirty minutes at least one day of
each week, at or near the noon hour, the
University convenes corporately for chapel
services. All employees are expected to be in
chapel unless specifically exempted by their
supervisor.
Furthermore, Regent maintains a tenure system for its
faculty members and one of the “Performance Review Criteria
for Faculty” is that “because of the unique mission of Regent
University . . . it is expected that faculty members will
exhibit spiritual vitality through their Christian witness,
both personally and professionally.” The Faculty Handbook
further divides these Performance Review Criteria into three
basic areas, one of which includes “[c]onducting student Bible
study/fellowship groups and regularly attending chapel.”
Additionally, when applying for promotion and tenure, faculty
members are required to complete a dossier that includes a
“Summary of Christian activities/spiritual vitality, which
includes such things as frequency of chapel attendance,
60
participation in staff devotions, home Bible studies, church
activity and involvement in other areas where there has been a
demonstration of spiritual vitality.”
The question before us then becomes whether, as a matter
of law, the trial court correctly applied Code § 23-30.41(e)
to the evidence regarding Regent’s primary purpose. In this
respect, it is necessary to determine the meaning of the
statutory phrase “religious training or theological
education.” The majority interprets “theological education”
to mean education preparing “students for vocations associated
with ordination, such as rabbi, minister or priest.” In
contrast, the majority interprets “religious training” to mean
education preparing “students for religious vocations other
than those associated with ordination.” Thus, the majority
concludes that this phrase refers only to “institutions or
departments within institutions” whose “primary function is
educating students for religious vocations.”
The majority supports this determination by citing the
Report of the Commission on Constitutional Revision (1969)(the
Report). In particular, the majority relies on a reference in
the Report to a Memorandum submitted by the Association of
Independent Colleges, which is contained in the public
commentary received by the Commission. See Report at 274
n.39. However, a reading of this material in its full context
61
does not support the majority’s reliance on the quoted portion
of the Memorandum. While the quoted portion does appear in
the pages referenced in the Report, the pages are not cited,
as the majority implies, to clarify the meaning of the phrase
“religious training.”
Instead, the Report cites the Memorandum for its factual
assertion that nine Virginia colleges within the Association
had “some degree of church relationship” but did not “impose[]
any religious tests for student admission or faculty
selection” or “serve[] primarily a single religious faith.”
Report at 274. The Commission thus drew a clear distinction
between institutions that do not emphasize their church
relationship and those that put strong emphasis on religious
faith. Unquestionably, Regent falls in the latter category in
that it imposes a religious test for faculty selection and
takes religion into account in its student admissions.
The portion of the Memorandum quoted by the majority
cites 20 U.S.C. § 751(a)(2) for the distinction drawn in the
Memorandum “between a church related college and an
institution . . . whose primary function is educating students
for religious vocations.” Memorandum at 6. Yet, this
distinction appears in the federal statute for the purpose of
defining a “school or department of divinity,” namely, as an
institution “whose program is specifically for the education
62
of students to prepare them to become ministers of religion or
to enter upon some other religious vocation . . . .” 20
U.S.C. § 751(a)(2) (1968) (repealed) (emphasis added). * This
portion of the federal statute with its “religious vocation”
language does not, as the majority implies, purport to define
the broader term “religious training.”
Finally, the distinction in the quoted portion on which
the majority relies between “an institution whose primary
service is to the state and community and one whose primary
service is to a religious or denominational group,” clearly
does not support the conclusion that “religious training” as
used in Code § 23-30.41(e) refers to education preparing
“students for religious vocations other than those associated
with ordination.” To the contrary, preparing a student for a
religious vocation has an even more limited meaning than is
contemplated by the phrase “primary service . . . to a
religious or denominational group.”
*
Although 20 U.S.C. § 751(a)(2) is no longer in effect,
the same definition can be found in current statutes, and its
limited application is apparent in each. See e.g., 20 U.S.C.
§ 103(9)(A); 20 U.S.C. § 1062(c)(1); 30 U.S.C. § 1325. Like
the federal statute, the Virginia Act at issue here separately
excludes “any facility which is used or to be used primarily
in connection with any part of the program of a school or
department of divinity for any religious denomination.” Code
§ 23-30.41(b).
63
In my view, the majority opinion effectively rewrites
Code § 23-30.41(e). The General Assembly’s use of the
disjunctive word “or” clearly denotes that “religious
training” is not the same as “theological education” within
the context of this statute. Moreover, the word “vocation”
does not appear anywhere in the statute. It is generally
accepted that one’s vocation is the work in which a person is
regularly employed and, in context, the term ordinarily does
not equate to a professional or occupational status such as
that of rabbi, minister, priest, missionary, or director of
religious education acquired only through theological
education.
Indeed, applying even the narrow interpretation used by
the majority and contrary to the majority’s reasoning in
footnote 4, the nonclinical M.A. degree in counseling violates
the prohibition in Code § 23-30.41(e) because “[t]he goal of
the program is not to develop clinical professionals, but to
train students who seek to help others within a
church/ministry setting.” However, it is clear that the
statute does not support the piecemeal analysis resorted to by
the majority. Code § 23-30.41(e) refers to an “institution”
rather than schools, departments, or programs within an
institution. Thus, even though I concur that Regent’s School
of Divinity is ineligible to participate in the bond program,
64
Code § 24-30.41(b), the focus of our inquiry should not be a
dissection of Regent into its constituent schools and their
departments and programs, but an examination of the “primary
purpose” of that institution as a whole.
The limitation contained in Code § 23-30.41(e) is
expressed in clear and unambiguous terms. We have repeatedly
stated that when the language in a statute is clear and
unambiguous, we apply the plain meaning rule. Under this
rule, we endeavor to ascertain and give effect to the
intention of the legislature from the words used in the
statute, unless a literal construction of the statute would
yield an absurd result. We may not adopt a construction of
the statute that would amount to a holding that the
legislature did not mean what it actually has expressed. See
generally Earley v. Landsidle, 257 Va. 365, 369-70, 514 S.E.2d
153, 155 (1999); Catron v. State Farm Mutual Auto Insurance
Co., 255 Va. 31, 38, 496 S.E.2d 436, 439 (1998); Hubbard v.
Henrico Ltd. Partnership, 255 Va. 335, 339, 497 S.E.2d 335,
377 (1998); and City of Winchester v. American Woodmark Corp.,
250 Va. 451, 457, 464 S.E.2d 148, 152 (1995).
When so viewed, the language of Code § 23-30.41(e)
applies to an institution of higher education whose primary
purpose, that is, its principal purpose, is to provide
religious training or theological education rather than
65
general secular education. In this context, the statute
acknowledges that a particular institution may have only one
purpose or some combination of all these purposes.
Accordingly, the limiting language of this statute applies
only where a particular institution’s primary purpose is
religious training or theological education. Theological
education is not at issue here. Religious training
contemplates teaching religious doctrine to accomplish a
particular result. Thus, when an institution’s principal
purpose is to teach its particular religious doctrine, and
when the institution pursues that principal purpose through
its teaching of secular subjects, that institution has as its
primary purpose religious training within the meaning of Code
§ 23-30.41(e). The record clearly reflects that such is the
case with Regent.
While the fact that Regent is a pervasively sectarian
institution does not compel the conclusion that its primary
purpose is religious training, it is a fact to be considered
in the determination required under Code § 23-30.41(e). As
the majority has concluded, Regent is a “pervasively sectarian
institution[,]” because it is “ ‘an institution in which
religion is so pervasive that a substantial portion of its
functions are subsumed in [its] religious mission.’ ” Habel
v. Industrial Development Authority, 241 Va. 96, 101, 400
66
S.E.2d 516, 519 (1991)(quoting Hunt v. McNair, 413 U.S. 734,
743 (1973)). Moreover, the record supports the conclusion
that Regent is operated in strict conformance with its Mission
Statement, Articles of Incorporation, Statement of Faith, and
academic freedom policy. Also controlling the operation of
Regent are the policies governing faculty and staff as
reflected in the Faculty Handbook, Staff Handbook, Faculty
Application, and Staff Application, and the requirements of
the secular courses offered to sustain Regent’s religious
purpose. In short, the record compels the conclusion that
Regent’s stated “ultimate purpose,” which is to “glorify[] God
and His Son, Jesus Christ,” is indeed its “primary purpose”
within the meaning of Code § 23-30.41(e).
On brief, the VCBA contends that if the limitation
contained in Code § 23-30.41(e) bars it from participating in
the revenue bond program at issue here, that this constitutes
impermissible “viewpoint discrimination” under the First
Amendment. See Rosenberger v. Rector and Visitors of the
University of Virginia, 515 U.S. 819, 839 (1995). Because the
VCBA failed to assert this argument in the trial court, the
VCBA may not raise that issue for the first time in this
appeal. Rule 5:25.
For these reasons, I respectfully dissent from the
majority’s holding that the trial court erred in ruling that
67
Regent was ineligible to participate in bond financing under
the Educational Facilities Authority Act. Because I would
hold that the Act does not permit Regent to participate in
this bond program, the issue whether its participation would
violate the Establishment Clause is moot. Accordingly, I do
not address that issue considered in the majority opinion.
68