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, creditworthiness, 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 bondfinanced 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 bondfunded facilities by the School of Divinity5, 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 everchanging, 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 CLAUSE6

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 

sectarian8 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 prorata 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 lifeimproving 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