Full opinion text
MEMORANDUM TRAUGER, District Judge. In this proceeding to invalidate a political subdivision’s bond issue to benefit a private, religious university, the principal inquiry is whether the bond issue violates the Establishment Clause of the First Amendment of the United States Constitution. The court has before it motions for summary judgment filed by Defendant David Lipscomb University (“Lipscomb”), Defendant Metropolitan Government of Nashville (“Metro”), and the plaintiffs. Defendant Industrial Development Board of the Metropolitan Government of Nashville and Davidson County (“Industrial Development Board” or “Board”), Defendant Sov-ran Bank, and Defendant Sovran Bank/Tennessee have not filed motions for summary judgment and have not responded to the plaintiffs motion for summary judgment. I. STATEMENT OF FACTS AND PROCEDURAL HISTORY David. Lipscomb University, founded in 1891, describes itself as a “liberal arts university.” (Docket No. 269, para. 4) It is located in Nashville, Tennessee, and has an enrollment of approximately 2,500 students. (Docket No. 269, para. 4) It is affiliated with the Churches of Christ, and its primary mission has been to integrate Christian faith and practice with the pursuit of academic excellence. (Docket No. 269, para. 4) During the early 1990s, Lipscomb undertook a major redevelopment project on its campus. To finance the project, Lipscomb sought a $15 million, low-interest loan from the Industrial Development Board. The Industrial Development Board approved the loan and financed it by issuing tax-exempt industrial development bonds worth $15 million. The bond issue was also approved by Metro’s Mayor Bill Boner as federally tax-exempt. The loan from the proceeds of the bonds was used in part to construct and equip a new library, to renovate and convert the old library into administrative offices, and to construct a new intramural athletics building (“or. student activities center”), four new tennis courts, a new baseball stadium, an intramural field, and an addition to the school’s Business Center. (Docket No. 192, Cochran Aff., para. 10) The bonds are typical of industrial revenue bonds that are commonly issued for educational or industrial purposes. The bonds were issued by the Board pursuant to its authority under state law to issue bonds for the financing of projects for “[a]ny nonprofit educational institution in any manner related to or in furtherance of the educational purposes of such institution, including but not limited to classroom, laboratory, housing, administrative, physical education, and medical research and treatment facilities.” Tenn. Code Ann. § 7-53-101(ll)(A)(vii) (1990 Supp.). Because the bonds were issued as education revenue bonds by the Board, the income produced by the bonds is exempt from state taxation. In addition, the bonds were approved by both the Board and Metro’s Mayor under the provisions of 26 U.S.C. § 103 (1994), making the interest on the bonds federally tax exempt. Consequently, the bonds carry a lower interest rate than conventional financing, and Lipscomb realizes the benefit through the resulting lower interest rate on its loan from the Board. The plaintiffs are state and local taxpayers residing in the Nashville area. They contend that the issuance of tax-exempt revenue bonds for David Lipscomb University provides an impermissible benefit to a pervasively sectarian institution, thereby violating the Establishment Clause of the First Amendment of the United States Constitution. (Docket No. 200) Such aid, they argue, has the impermissible effect of advancing religion because a substantial portion of Lipscomb’s functions are subsumed in its religious mission. (Docket No. 200) Plaintiffs and/or their counsel objected to the issuance of the bonds on this basis at public hearings and meetings of the Board held on April 10, 1990, April 16, 1990, May 30, 1990 and January 22, 1991. (Docket No. 275, para. 9) When the bonds were approved over their objection, plaintiffs filed suit in this court on May 30, 1991, as municipal taxpayers challenging the validity of the Board’s action in issuing tax-exempt revenue bonds for the benefit of Lipscomb. (Docket No. 1; Docket No. 268, para. 15) Lead plaintiff Harold E. Steele died on April 1, 1998. (Docket No. 273, para. 2) The plaintiffs were found to have standing to bring this suit as municipal taxpayers who have an interest in preventing their local government from subsidizing religious institutions. (Docket No. 83) The plaintiffs argued that the tax base of the state and local governments was reduced by the tax-exempt bonds and, therefore, tax dollars were being expended on behalf of a pervasively religious institution. They asserted that, if tax-exempt bonds had not been issued, Lipscomb would have financed all or part of the project through taxable bonds, which would have provided significant revenue for the city coffers. Although the Board is an instrumentality of the Metropolitan- Government, the bonds do not constitute an indebtedness of either the Board or the Metropolitan Government. (Docket No. 1, attach., Ex. D at 4; Docket No. 197, Cochran Aff., paras. 7-8) Neither the Board nor the Metropolitan Government can be held liable to pay any portion of the principal or interest on the bonds or any costs incidentto their issuance. TENN. CODE ANN. § 7-53-306 (1985). No state or local government tax revenues have been or will be-spent as a result of the -issuance of the bonds. (Docket No. 197, Cochran Aff., para. 7) The judge originally assigned to this case found that, even if no tax money is spent, taxpayer status is proper grounds for an Establishment Clause challenge to policies that affect the city’s general revenue fund. Summary judgment was denied on those grounds and, on interlocutory appeal, the Sixth Circuit Court of Appeals upheld the ruling on standing. Steele v. Indus. Dev. Bd. of the Metro. Gov’t of Nashville and Davidson County, 39 F.3d 1182 (6th Cir.1994)(unpublished table decision), cert. denied, 515 U.S. 1121, 115 S.Ct. 2275, 132 L.Ed.2d 279 (1995). ■ Lipscomb submitted a renewed motion for summary judgment on December 15, 1995, asserting that the “tax exempt” status the bonds derived from the Board could not have harmed the plaintiffs because the bonds would not have fallen under the Hall Income Tax statute anyway. Because the bonds.would mature in less than six months, the university argued, they were demand instruments, which are not taxable under the Hall Income Tax statute. The question of whether the bonds would have fallen under the Hall Income Tax statute if they had not been issued as tax-exempt bonds was certified to the Tennessee Supreme Court. The Tennessee Supreme Court ruled that, under the plain meaning of the law, bonds are not demand instruments and, therefore, are taxable. Steele v. Indus. Dev. Bd. of the Metro. Gov’t of Nashville and Davidson County, 950 S.W.2d 345 (1997). Lipscomb has now filed a third motion for summary judgment on the merits, alleging that its receipt of tax-exempt revenue bonds for its facilities expansion project is not a violation of the Establishment Clause, nor does it have the primary effect of advancing religion. (Docket No. 193) Metro has also moved for summary judgment on several grounds. (Docket No. 189) Oral argument was held May 10, 2000, after which the court requested that the plaintiffs submit a motion for summary judgment. The plaintiffs have moved for summary judgment on the grounds that Lipscomb is so pervasively sectarian that a substantial portion of its function is subsumed in its religious mission. (Docket No. 258) As such, the plaintiffs assert, the $15 million in tax-exempt revenue bonds provided in this case had the impermissible effect of promoting religion as a matter of law. (Docket No. 258) II. ANALYSIS A. Summary Judgment Standard Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be rendered if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). In order to prevail, the movant has the burden of proving the absence of a genuine issue of material fact as to an essential element of the opposing party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). In determining whether the movant has met its burden, the court must view the evidence in the light most favorable to the nonmov-ing party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). If the nonmoving party, however, fails to make a sufficient showing on an essential element of the case with respect to which the nonmoving party has the burden, the moving party is entitled to summary judgment as a matter of law. See Williams v. Ford Motor Co., 187 F.3d 533, 537-38 (6th Cir.1999). To preclude summary judgment, the nonmoving party “is required to present some significant evidence which makes it necessary to resolve the parties’ differing versions of the dispute at trial.” Gaines v. Runyon, 107 F.3d 1171, 1174-75 (6th Cir.1997). The nonmoving party must show that “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). To determine whether the nonmoving party has raised a genuine issue of material fact, the evidence of the nonmoving party is to be believed, and all justifiable inferences are to be drawn in its favor. See id., at 255, 106 S.Ct. at 2513. The court should also consider whether the evidence presents “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Street, 886 F.2d at 1479. If the evidence offered by the nonmovant is “merely color-able,” “not significantly probative,” or is not enough to lead a fair-minded jury to find for the nonmoving party, the motion for summary judgment should be granted. Anderson, 477 U.S. at 249-52, 106 S.Ct. at 2510-12. B. The Issuance of Tax-Exempt Bonds 1. Statutory Authority and Standards for Tax-Exempt Bond Issuance Under 26 U.S.C. § 103, gross income does not include interest on any state or local bonds that are both private activity bonds and qualified under 26 U.S.C. § 141. See 26 U.S.C. § 103(a)(b)(l) (1994). A private activity bond is defined, in relevant part, under 26 U.S.C. § 141 as any bond that is part of an issue which meets the “private loan financing test.” 26 U.S.C. § 141(a)(2) (1994). The “private loan financing test” is met where “the amount of the proceeds of the issue which are to be used (directly or indirectly) to make or finance loans ... to persons other than governmental units exceeds the lesser of (A) 5 percent of such proceeds, or (B) $5,000,000.” 26 U.S.C. § 141(c)(1) (1994). In order for the interest on the bonds to be exempt from federal taxation, the private activity bonds must also be qualified under 26 U.S.C. § 141(e) (1994). There are three criteria that a bond issuance must meet under this section. First, the bond must fall within one of the enumerated categories: “(A) an exempt facility bond, (B) a qualified mortgage bond, (C) a qualified veterans’ mortgage bond, (D) a qualified small issue bond, (E) a qualified student loan bond, (F) a qualified redevelopment bond, or (G) a qualified 501(c)(3) bond.” 26 U.S.C. § 141(e)(1) (1994). Second, the bond issue must meet the volume cap requirements of section 146. 26 U.S.C. § 141(e)(2) (1994); see also 26 U.S.C. § 146 (1994). Finally, the bond issue must meet the requirements of each applicable subsection of section 147. 26 U.S.C. § 141(e)(3) (1994). Under the public approval requirement of section 147(f), in order to be a qualified bond a private activity bond must be approved by both the governmental unit issuing the bond and the governmental unit that has jurisdiction over the area in which the facility receiving financing through the bond proceeds - is located. See 26 U.S.C. § 147(f)(2)(A) (1994). A bond that meets each of these criteria will be designated as a qualified private activity bond under 26 U.S.C. § 103. Where the bonds issued are qualified private activity bonds, the interest from the bonds will be exempt from federal taxation. 26 U.S.C. § 103 (1994). In this case, the bonds were issued for the benefit of Defendant David Lipscomb University, a private educational institution. (Docket No. 259, para. 13; Docket No. 273, para. 13) The proceeds of the bonds, in the amount of $15,000,000, were loaned to Lipscomb for building and renovating facilities on its campus. (Docket No. 1, para. 28; Docket No. 2, para. 28; Docket No. 3, para. 8; Docket No. 4, para. 28; Docket No. 273, para. 6) This meets the “private loan financing test” of section 141(c) because the entire amount of bond proceeds loaned to Lipscomb exceeded the statutory minimum loan amount. Therefore, the bonds may be characterized as private activity bonds under 26 U.S.C. § 141(a) (1994). In order to be tax exempt, the bonds must also be qualified under the provisions of section 141(e). 26 U.S.C. § 103 (1994) The bond issue meets the first criteria for being a qualified private activity bond under section 141(e)(1) because the bonds are qualified 501(c)(3) bonds, which is one of the enumerated categories of bond types under this section. See 26 U.S.C. § 141(e)(1) (1994). A,qualified 501(c)(3) bond is defined in section 145(a) as a private activity bond where “all property which is to be provided by the net proceeds of the issue is to be owned, by a 501(c)(3) organization.” 26 U.S.C. § 145(a)(1) (1994). All of the proceeds of the $15,000,000 bond issue were loaned to Lipscomb for use in building new facilities and in renovating existing facilities. (Docket No. 191, para. 10; Docket No. 192, Cochran Aff., para.. 10) Lipscomb is a registered 501(c)(3) organization. (Docket No. 13, attach. Ex. A, Tab 6) Because all of the proceeds of the bond issue were used to provide property owned by a 501(c)(3) organization, the bond issue satisfies the first requirement of section 141(e). The final requirement of the statutory scheme for issuing federal tax-exempt bonds is that the bonds must satisfy each of the subsections of section 147. 26 U.S.C. § 141(e)(3) (1994). The only subsection applicable to the bond issue in this case is section 147(f); which provides that a private activity bond.-will not be a qualified bond unless it meets the subsection’s public approval requirement. 26 U.S.C. § 147(f) (1994). This requirement is satisfied where the bond issue has been both (1) approved either by or on behalf of the governmental unit that issued the bonds, and (2) approved by each governmental unit that has jurisdiction over the area where any facilities which are to be financed by the bond proceeds are located. 26 U.S.C. § 147(f)(A) (1994). In each case, the approval must be given by either “the applicable elected representative of such governmental unit after a public hearing following reasonable notice” or by a voter referendum of the governmental unit. 26 U.S.C. § 147(f)(B) (1994). The elected representative may be an elected legislative body of the governmental unit, “the chief elected executive officer, the chief elected State legal officer of the executive branch, or any other elected official of such unit designated for the purposes of this paragraph by such chief elected executive officer or by State law.” 26 U.S.C. § 147(f)(2)(E)(i) (1994). The “scope” of the governmental approval is addressed in federal regulations, which state: An issue is treated as approved if the governmental units ... have approved either - (1) The issue ... not more than one year before the date of issue, or (ii)A plan of financing for each facility financed by the issue pursuant to which the issue in question is timely issued (as required in paragraph (f)(3) of this section). In either case, the scope of the approval is determined by the information, as specified in paragraph (f)(2), contained in the notice of hearing ... and the approval. (2) Information required. A facility is within the scope of an approval if the notice of hearing ... and the approval contain - (i) A general, functional description of the type and use of the facility to be financed ... (ii) The maximum aggregate face amount of obligations to be issued with respect to the facility, (iii) The initial owner, operator, or manager of the facility, (iv) The prospective location of the facility by its street address or, if none, by a general description designed to inform readers of its specific location. ... An approval or notice of public hearing will not be considered to be adequate if any of the items in subdivisions (i) through (iv) of this subparagraph (2), with respect to the facility to be financed, are unknown on the date of the approval or the date of the public notice. 26 C.F.R. § 5f.l03-2(f) (1999). In this case, the bond issue was approved by the Industrial Development Board as the governmental unit that issued the bonds and by Mayor Bill Boner as the chief elected executive officer of Metropolitan Government of Nashville and Davidson County, the governmental unit in which the facilities of David Lipscomb University are located. (Docket No. 191, paras. 14-17; Docket No. 201, paras. 14-17) There were two public hearings on the bond issue prior to the final issuance by the Board and approval by the mayor on May 30, 1990, and the plaintiffs do not allege that there was either inadequate notice of those hearings or inadequate information in the notices or approvals. (Docket No. 259, paras. 9, 12, 13; Docket No. 273, paras. 9,13) The technical statutory requirements for creating federally tax-exempt bonds are clear, but there is little guidance on the standard to be used by the governmental units deciding whether to grant public approval. The Board has offered no information on this question and has not responded to the plaintiffs’ Motion for Summary Judgment. Metro has offered a variously-worded standard, which states, in essence, that the bond issue must be for a legitimate public purpose and/or must create a substantial public benefit. (Docket No. 190 at 9, 11-16, 28-29; Docket No. 191, paras. 19-21, 23-24; Docket No. 273, para. 5; Docket No. 286 at 6-9) According to its briefs, Metro has taken this language from the Tennessee statutory definition of “public purpose,” TENN. CODE ANN. 7-53-102(a) (1985), and from the Report of the Senate Finance Committee in recommending the public notice and approval requirements. See S.Rep. No. 494(1), 97th Cong., 2nd Sess.1982, 1982 U.S.C.C.A.N. 781; Docket No. 190 at 15-16; Docket No. 286 at 7-9. The court can find no standard for the public approval in the statutory scheme regarding the issuance of federal tax-exempt bonds. In the Committee Report referenced by Metro, the Senate Finance Committee explains its reasoning in recommending the public approval requirement, specifically in relation to industrial development bonds: The committee believes that new restrictions are needed on IDBs to help eliminate inappropriate uses and to help restore the benefit of tax-exempt financing for traditional governmental purposes. However, the committee believes that, in general, state and local governments are best suited to determine the appropriate uses of IDBs. The committee believes that providing tax exemptions for the interest on certain IDBs may serve legitimate purposes in some instances provided that the elected representatives of the state or local governmental unit determine after public input that there will be. substantial public benefit from issuance of the obligations and provided that the affected public has had an opportunity to comment on the use of tax-exempt financing for particular facilities. In order to achieve this goal, the committee bill requires notice and a public hearing and approval by an elected representative of the issuer before issuance of any IDBs. S.Rep. No. 494(1), 97th Cong., 2nd Sess. 1982, 1982 U.S.C.C.A.N. 781, 930 (emphasis added). This legislative history comports with a reasonable interpretation of the statute requiring public approval, and Metro seems to have adopted this standard willingly. (Docket No. 190 at 9-16; Docket No. 273, para. 5; Docket No. 286 at 8-9) Therefore, this court finds that in determining whether to grant approval to the bonds as federally tax-exempt under 26 U.S.C. § 147(f), the Industrial Development Board and Mayor Bill Boner were each required to determine that the issuance of the bonds would serve a legitimate public purpose and/or create a substantial public benefit. 2. Board’s Role in the Issuance of Tax-Exempt Bonds Under Tennessee law, a development board may be incorporated when at least three taxpayers make written application to a municipality and the municipal government determines: that it is wise, expedient, necessary or advisable that the corporation be formed and shall authorize the persons making such application to proceed to form such corporation and shall approve the form of certificate of incorporation proposed to be used in organizing the corporation, then the persons making such application shall execute, acknowledge and file a certificate of incorporation for the corporation as hereinafter provided. No corporation may.be formed unless such application shall have first been filed with the governing body of the municipality and the governing body shall have adopted a resolution as provided in this section. Tenn. Code Ann. § 7-53-201 (1985). In this case, Metro approved creation of the corporation by resolution as the statute required. The approved incorporation papers must then be filed with the Secretary of State’s office. Once the incorporation has been approved, the development board can only amend its incorporation papers if the governing body (here Metropolitan Government) determines that it is “wise, expedient, necessary or advisable that the proposed amendment be made.” Tenn. Code Ann. § 7-53-204 (198,5). Industrial development boards have considerable statutory powers, including, authority to enter loan agreements with private third parties, sue and be sued, sell any or all of their properties, including the rents, revenues and receipts of the board, issue bonds, and borrow money from banks or other financial institutions by issuing notes. Tenn. Code Ann. § 7-53-302 (1990 Supp.). Among these statutory powers, the industrial development board is empowered to approve tax-exempt bonds for various public works and projects, including “[a]ny nonprofit educational institution in any manner related to or in furtherance of the educational purposes of such institution, including, but not limited to classroom, laboratory, housing, administrative, physical- education, and medical research and treatment facilities.” Tenn. Code Ann. § -7 — 53—101(ll)(A)(vii) (1990 Supp.). After approval and sale of the bonds, municipal governments that approve them are not liable for re-payment of the debt. Code Ann. § 7-53-306 (1985). Tenn. The Board issued the industrial development bonds benefitting David Lipscomb University pursuant to this state authority. In addition, the Board approved the bonds to be federally tax-exempt (Docket No. 3, para. 8) as established under the provisions of 26 U.S.C. § 103 (1994). The Board held two public hearings prior to issuing final approval of the bond issue, although the Board members were only present for the second of these hearings. (Docket No. 1, attach. Exs. F-G) In approving the bond issue as tax exempt, the Board had to find that the bond issue served a legitimate public purpose and/or created a substantial public benefit. There cannot be a legitimate public purpose that violates the United States Constitution. In approving the bond issue as serving a legitimate public purpose, therefore, the Board was necessarily required to determine that the issue would not conflict with the Establishment Clause of the First Amendment. 3. Metro’s Role in the Issuance of Tax-Exempt Bonds Metro contends that summary judgment should be granted in its favor because it cannot be held liable for the Industrial Development Board’s issuance of tax-exempt revenue bonds. (Docket No. 189) Metro contends that the statutes and regulations incorporating and empowering the Board provide a shield, protecting the Metropolitan Government from liability in the issuance of the bonds because plaintiffs can sue directly the Industrial Development Board, the entity that issued the bonds. But this fact does not insulate Metro from its own responsibility in the approval of the bonds. Without Metro’s approval, the bonds could not have been issued as federally tax-exempt. In granting approval, the mayor is required under § 147(f) to ascertain whether the issuance of the bond in question serves a legitimate public purpose and/or creates a substantial public benefit. Metro argues that the mayor’s inquiry is limited to determining whether the bond issue contains the four pieces of “information required” under the federal regulations interpreting the public approval requirement, 26 C.F.R. § 5f.l03-2(f) (1999). (Docket No. 190 at 11) This argument is based on a misreading of the regulation, which clearly states that these four pieces of information determine the “scope of the approval” and the adequacy of the approval and public notice. See 26 C.F.R. § 5f.l03-2f(l)-(2) (1999). In other words, no public notice or approval will be valid if all of this information is not spelled out and made public. The regulation cannot be read to limit Metro’s consideration to these four things and foreclose it from constitutional considerations. And Metro concedes in its papers that its “actions are limited by the United States Constitution ...”. (Docket No. 273, para. 5) Metro’s interpretation would make Metro an instrumentality of the Industrial Development Board when, in fact, the opposite is true. “The corporation is hereby declared to be performing a public function in behalf of the municipality with respect to which the corporation is organized and to be a public instrumentality of such municipality.” Tenn. Code ANN. § 7-53-305(a) (1990 Supp.); Docket No. 1, attach., Ex. D at 4; see also Docket No. 192, Cochran Aff., para. 8. The Court finds that the Industrial Development Board is an instrumentality of Metro. This court has accepted the standard put forth by Metro that, in order to grant approval of the bonds as federally tax-exempt, the mayor must determine that the bond issue serves a legitimate public purpose and/or creates a substantial public benefit. The mayor was at least generally aware of this standard when he approved the bond issue, as indicated in a letter to the Board written by the mayor before he granted approval. (Docket No. 206, Deposition of William Hill Boner, Ex. 3; Docket No. 273, para. 5) In requesting that the Board hold a second public hearing and review the bond issue it had previously approved, the mayor stated, I am advised that the purpose of the public hearing and approval requirement isfto allow for more informed decisions by the local government unit as to the public benefit to be derived from the issuance of the obligations as well as to provide the affected public with a reasonable opportunity to comment on the use of tax-exempt financing for particular facilities. These considerations are relevant not only for my review but also to the Board as it exercises its statutory responsibilities. (Docket No. 206, Deposition of William Hill Boner, Ex. 3) Although Metro and the mayor seem to have been aware of the standard for public approval of the bond issue, there is little evidence in the record of efforts made by the mayor to determine whether the bond issue in question met that standard. In his deposition, Mayor Boner admitted that he did not review the administrative record of any of the public hearings concerning the bond issue. (Docket No. 206 at 33-34, 59) Mayor Boner has no recollection of reading or considering a number of letters sent to his office highlighting concerns about possible conflicts with the First Amendment in issuing tax-exempt bonds to assist a private, religious institution. Id. at 34-38, 59. Mayor Boner also admitted that he did not personally review any of the issues or documents relating to this determination' or to the question of whether the bond issue would violate the Establishment Clause of the First Amendment. (Docket No. 206, Deposition of William Hill Boner, at 59-60) Instead, the mayor stated repeatedly that he relied entirely on the Metropolitan Legal Department’s recommendation regarding his responsibilities in the approval of the bond issue. Id. at 33, 38, 45-47. Metro has admitted, however, that the Mayor did not consult with the Legal Department on any Establishment Clause issues during the period he was considering the bond issue in this case. (Docket No. 273, para. 36; Docket No. 206, Deposition of William Hill Boner, at 12) With regard to the religious nature and characteristics of David Lipscomb University, Metro has admitted that the mayor did not investigate the degree of affiliation between the institution and the Churches of Christ. (Docket No. 273, para. 38; see also Docket No. 206, Deposition of William Hill Boner, at 14) Mayor Boner also did not read the corporate charter of Lipscomb (Docket No. 273, para. 39; see also Docket No. 206, Deposition of William Hill Boner, at 14), and the mayor was unaware of the stated purpose of the university, as contained in that charter, when he granted approval to the bond issue to be tax exempt. (Docket No. 273, para. 40; see also Docket No. 206, Deposition of William Hill Boner, at 4) Mayor Boner did not review any Lipscomb publications outlining the goals and objectives of the university. (Docket No. 273, para. 42; see also Docket No. 206, Deposition of William Hill Boner, at 15) Finally, the mayor was unaware restrictive covenants on the property owned by Lipscomb and of the mandatory attendance requirements for Lipscomb students in Bible classes and at chapel services. (Docket No. 273, paras. 41, 43-44; see also Docket No. 206, Deposition of William Hill Boner, at 15) of The court is not directly considering the duty of care owed by the mayor in investigating and approving the bond issue in this case, but the court is concerned with whether the bond issue violated the Establishment Clause of the First Amendment. In granting approval for the bonds to be federally tax-exempt, the mayor was required to determine that the bond issue served a legitimate public purpose and/or created a substantial public benefit. A bond issue that infringes upon the Establishment Clause cannot meet this standard. Without the mayor’s approval of the bond issue as meeting the federal requirements, the bonds could not have been issued as federally tax-exempt and no suit would be before this court. Therefore, because of the significant role that the Metropolitan Government plays in this process, both through the action of its mayor and by virtue of the fact that the Board is an instrumentality of Metro, defendant Metro’s position that the issuance of tax-exempt revenue bonds to Lipscomb was an act solely attributable to the Industrial Development Board is untenable. Summary judgment on this ground will be denied to Metropolitan Government. C. Establishment Clause The First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... ” U.S. Const. amend. I. From the earliest consideration of Establishment Clause challenges, courts have found it easier to identify the lofty goals of the First Amendment than to apply it in these cases. In the more than fifty years since the Supreme Court found the Establishment Clause applicable to the states in Everson v. Board of Ed. of the Township of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), the Court has continued to struggle in defining the limits of state action under the Establishment Clause and in creating guidelines for the states and the courts to follow: It is easy enough to quote the few words comprising that clause — ‘Congress shall make no law respecting an establishment of religion.’ It is not at all easy, however, to apply this Court’s various decisions construing the Clause to governmental programs of financial assistance to sectarian schools and the parents of children attending those schools. Indeed, in many of these decisions, “we have expressly or implicitly acknowledged that *we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.’ ” Mueller v. Allen, 463 U.S. 388, 392-93, 103 S.Ct. 3062, 3065-66, 77 L.Ed.2d 721 (1983) (quoting Lemon v. Kurtzman, 403 U.S. 602, 609, 612, 91 S.Ct. 2105, 2109, 2111, 29 L.Ed.2d 745 (1971), quoted with approval in Committee for Public Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 761, 93 S.Ct. 2955, 2959, 37 L.Ed.2d 948 (1973)). In Lemon v. Kurtzman, the Court recognized “the three main evils against which the Establishment Clause was intended to afford protection: sponsorship, financial support, and active involvement of the sovereign in religious activity.” 403 U.S. at 612, 91 S.Ct. at 2111 (internal citations and quotation marks omitted). The Court then articulated its now-familiar three-pronged test for affording this protection. 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, 91 S.Ct. at 2111. In Agostini v. Felton, the Court found that the entanglement prong, while still important, has essentially evolved into a consideration within the primary effect prong of the test. 521 U.S. 203, 232-33, 117 S.Ct. 1997, 2015, 138 L.Ed.2d 391 (1997). As a result, the analysis of the “effects” prong of the Lemon test consists of three primary considerations: (1) whether the statute results in government indoctrination; (2) whether the statute defines its recipients by reference to religion; and (3) whether the statute creates an excessive entanglement. See id., at 234, 117 S.Ct. 1997, 117 S.Ct. at 2016. Within that framework, the Court has reiterated that the analysis of excessive entanglement involves the same factors as when it was a separate consideration: (1) the character and purposes of the institution benefitted; (2) the nature of the aid the state provides; and (3) the resulting relationship between government and religious authority. Id., at 232, 117 S.Ct. at 2015. .The plaintiffs challenge the issuance of tax-exempt bonds to David Lipscomb University on the grounds that it is an action by the Industrial Development Board and by the Metropolitan Government of Nashville and Davidson County in violation of the Establishment Clause of the First Amendment. The plaintiffs assert that they are entitled to summary judgment because, as a matter of law, Lipscomb is so pervasively sectarian that the substantial tax benefit conferred directly on the school, in effect, was state sponsorship of the school’s Christian indoctrination. The defendants assert that the plaintiffs’ motion for summary judgment should be denied and the defendants’ motions granted because the Supreme Court’s recent decision, Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000), affirms the defendants’ position that, because the tax benefit to Lipscomb promotes a legitimate, secular, legislative purpose, there is no First Amendment violation. In addition, Lipscomb asserts that, under Mitchell, the pervasively sectarian test is no longer viable and, even if it were, the benefit conferred upon Lipscomb is merely a tax exemption that has long been an acceptable indirect benefit to religious institutions. The parties in this case agree that the statute has a secular purpose as written. Therefore, the court need consider only whether the governmental aid in this case has the primary effect of fostering or promoting religion. To determine whether the tax-exempt bonds have such an effect, the court must determine whether this aid (1) results in governmental indoctrination; (2) defines its recipients by reference to religion; or (3) creates an excessive entanglement. Agostini, 521 U.S. at 234, 117 S.Ct. at 2016. 1. Possible Lines of Analysis under Establishment Clause Precedent While the statute authorizing the tax-exempt bond issue does not identify the recipients by reference to religion, Metro’s authorization of the bond issue fails the other two criteria used to determine whether the government benefit advances religion: it results in governmental indoctrination and creates an excessive entanglement. In making this determination, the court relies on three separate lines of analysis provided by the Supreme Court and other lower courts to determine whether government aid to a religious institution violates the Establishment Clause. Because the Court has repeatedly noted the difficulty in evaluating individual cases under the Establishment Clause, this court will examine the facts of this case under each of these three approaches. The first approach relies on the line of cases considering state aid directly given to colleges and universities, as discussed primarily in Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973), and Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976). This line of cases provides the most directly controlling precedent to the case at hand, establishing that a government may not provide financial aid to a pervasively sectarian institution. All three cases confront financial assistance provided to colleges and universities by the states in the form of grants or the proceeds of revenue bonds. These facts parallel the case before the court, and the decisions in these cases provide the best framework for analyzing the constitutionality of the tax-exempt bonds issued for the benefit of Lipscomb. Although the above cases provide the most directly-applicable analysis of the instant case, they do not represent the most recent decisions by the Court concerning government aid in various forms to religious schools and institutions. The more recent cases, including Agostini, Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000), and Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), cover a variety of aid programs and schools. They provide a different framework of analysis for the Lipscomb bond issue, focusing on specific details of the aid program, such as the neutrality of the program, the role of private individuals in determining the recipients of the aid, and the safeguards implemented to ensure that the aid will support only the secular functions of the religious institutions. These cases are not all factually similar to the instant case, but they provide additional guidance for evaluating the assistance given to Lipscomb as a result of the tax-free bond issue. Finally, many of the Court’s decisions involve, at least in part, a consideration of whether the government action would be interpreted by a reasonable observer as an endorsement of religion. See, e.g., Rosenberger, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992); County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). As Justice Brennan explained for the plurality in Texas Monthly, Inc. v. Bullock, In proscribing all laws ‘respecting an establishment of religion,’ the Constitution prohibits, at the very least, legislation that constitutes an endorsement of one or another set of religious beliefs or of religion generally. It is part of our settled jurisprudence that ‘the Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization.’ 489 U.S. 1, 8-9, 109 S.Ct. 890, 896, 103 L.Ed.2d 1 (1989) (plurality opinion) (quoting Gillette v. United States, 401 U.S. 437, 450, 91 S.Ct. 828, 836, 28 L.Ed.2d 168 (1971)). According to this approach, if the government action would be considered an endorsement of religion by a reasonable observer, then the action has the impermissible effect of advancing religion in violation of the Establishment Clause. Thus, the endorsement test provides a third analytical tool for evaluating the bond issue in this case. Each of the above tests is simply a framework for evaluating whether a specific government action is in violation of the Establishment Clause because it has the primary effect of advancing or inhibiting religion. An analysis of this case under each of these lines of cases draws a better picture of the government’s actions in relation to what the Court has found to be permissible and impermissible under the Establishment Clause. 2. Pervasively Sectarian Test In Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), which was issued the same day as Lemon, the Court stated that the “crucial question” concerning government aid to religiously affiliated schools “is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.” 403 U.S. at 679, 91 S.Ct. at 2096. The Court recognized the possibility that there could be cases in which “religion so permeates the secular education provided by church-related colleges and universities that their religious and secular educational functions are in fact inseparable.” Id., at 680, 91 S.Ct. at 2097. These “pervasively sectarian” institutions cannot receive government financial assistance without the impermissible effect of advancing the religious beliefs of the institutions. See Roemer, 426 U.S. at 755, 96 S.Ct. at 2349. The plaintiffs rely on this theory and claim that providing aid to David Lipscomb University violated the Establishment Clause because Lipscomb “is so pervasively sectarian that a substantial portion of its function is subsumed in its religious mission.” (Docket No. 258, para. 3). a. Mitchell v. Helms and the Status of the Pervasively Sectarian Test As an initial matter, the defendants have questioned whether this line of cases is an appropriate basis for considering the Lipscomb bond issue. The defendants have argued that the “pervasively sectarian” test is no longer valid under Establishment Clause jurisprudence, thus, the court should not evaluate the Lipscomb bond issue under that approach. The defendants rely on the plurality opinion of Justice Thomas in Mitchell v. Helms for this proposition. See Mitchell, 530 U.S. 793, 120 S.Ct. 2530, 2550-52, 147 L.Ed.2d 660 (2000) (plurality opinion). The defendants are correct that the plurality opinion in Mitchell indicates that the “pervasively sectarian” test should no longer be used in evaluating Establishment Clause claims. Justice Thomas states 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.” Id., 530 U.S. at -, 120 S.Ct. at 2550. Justice Thomas finds that “nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This doctrine, born of bigotry, should be buried now.” Id., 530 U.S. at-, 120 S.Ct. at 2552. Mitchell, like many of the Court’s recent Establishment Clause cases, is a plurality opinion. Justice Thomas wrote the plurality opinion, and it was joined by Chief Justice Rehnquist and by Justices Scalia and Kennedy. See id., 530 U.S. at -, 120 S.Ct. at 2536. Justice O’Connor wrote an opinion, concurring in the judgment only, in which Justice Breyer joined. See id., 530 U.S. at-, 120 S.Ct. at 2556. Neither Justice O’Connor nor Justice Breyer joined in any portions of the plurality opinion written by Justice Thomas. It is well settled that in a plurality opinion, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Coe v. Bell, 161 F.3d 320, 354 (6th Cir.1998)(quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)); see also, Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 764, fn. 9, 108 S.Ct. 2138, 2148, 100 L.Ed.2d 771 (1988); Reese v. City of Columbus, 71 F.3d 619, 625 (6th Cir. 1995). In Mitchell, there is no single part of any opinion that commands the support of a majority of the Court. As a result, the only binding precedent of Mitchell is the holding. See Igor Kirman, Note, Standing Apart to be A Part:' The Precendential Value of Supreme Court Concurring Opinions, 95 COLUM. L. REV.2083, 2084-85 (1995); Ken Kimura, A Legitimacy Model for the Interpretation of Plurality Decisions, 77 Cornell L. Rev. 1593,1596-98 (1992). This court will not abandon a recognized and applicable test under Establishment Clause jurisprudence unless and until the Supreme Court has clearly determined that it is no longer a valid approach. In fact, Justice Thomas supported this position in Mitchell and cited the admonition of the Court from Agostini v. Felton: We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that ‘[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’ Agostini, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989)), cited in Mitchell v. Helms, 530 U.S. at -, 120 S.Ct. at 2539 (plurality opinion). The cases establishing that government financial aid may not be provided to pervasively sectarian universities are the most directly applicable precedent for deciding the case at hand. The Supreme Court has not overruled these cases. Therefore, this court will examine the Lipscomb bond issue under this approach to determine whether the aid provided to Lipscomb had the effect of advancing religion in violation of the Establishment Clause. b. Development of the Pervasively Sectarian Test The pervasively sectarian test is based on the line of cases beginning with Tilton and extending through Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988). In Hunt v. McNair, the Court found that “[a]id normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.” 413 U.S. 734, 743, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923 (1973). Thus, the rule under the pervasively sectarian test, as stated in Roemer v. Board of Public Works of Maryland, 426. U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976), is that “no state aid at all go to institutions that are so ‘pervasively sectarian’ that secular activities cannot be separated from sectarian ones .... ” 426 U.S. at 755, 96 S.Ct. at 2349. In Tilton, the Supreme Court considered a federal program offering construction grants for schools and colleges under Title I of the Higher Education Facilities Act of 1963. See 403 U.S. at 674, 91 S.Ct. at 2094. In general, the Court found that the aid program was carefully administered to make sure that the funds did not go to pervasively sectarian colleges: some colleges were declared ineligible to receive funds, and those religiously affiliated schools that did receive funds were not so sectarian that religion permeated their teachings. See id., at 679-80, 682, 91 S.Ct. at 2096, 2097. Thus, the Court refused to strike down a direct federal grant to four Roman Catholic colleges and universities in Connecticut because none of the four colleges was pervasively sectarian. Id., at 682, 91 S.Ct. at 2097. The Court in Tilton observed that none of these church-related colleges compelled attendance at religious services and that the colleges subscribed to a set of well-established principles of academic freedom. Id., at 686-87, 91 S.Ct. at 2099-2100. Moreover, the evidence showed that non-Catholies were admitted as students and given faculty appointments, and the courses taught at the colleges covered a range of human religious experiences and thus were not limited to instruction from a Roman Catholic perspective. Id. The Court found that these schools, although affiliated with a religion, were “characterized by an atmosphere of academic freedom rather than religious indoctrination.” Id., at 681, 91 S.Ct. at 2097. These facts led the Court to conclude that the institutions could receive federal aid without having the effect of advancing religion. At the same time, Chief Justice Burger’s majority opinion held open the likelihood that if pervasively sectarian schools had received the funds, the statute might have been invalid as applied. See id., at 682, 91 S.Ct. at 2097-98. (“Individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact possess these characteristics.”). Two years after Tilton, the Court considered another aid program benefitting religious schools. In Hunt v. McNair, the Court upheld a decision to issue tax-free revenue bonds — substantially similar to those issued in this case — for the benefit of Baptist College at Charleston, South Carolina. See id., at 736-37, 93 S.Ct. at 2870-71. The Court found very little evidence that the college was pervasively sectarian, even though it was governed by the South Carolina Baptist Convention. Id., at 743, 93 S.Ct. at 2874. About 60 percent of the student body was Baptist, but the Court found that this percentage was equivalent to the percentage of Baptists in the area where the school was located. Id., at 744, 93 S.Ct. at 2874. Further, the school had no religious qualifications for faculty membership or student admittance. Id., at 743-44, 93 S.Ct. at 2874. From the facts, the Court concluded that Baptist College was not pervasively sectarian and, thus, could receive the benefit of the bond issue. Id., at 743, 93 S.Ct. at 2874. Like Tilton, however, the Court found that if the state aid had gone to pervasively sectarian colleges, the outcome would have been different. See id. In Roemer v. Bd. of Public Works of Maryland, 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976), the Court again considered the application of a statute that provided for state grants to private colleges, including church-related colleges. The Court found that several church-related colleges in Maryland that had received state grants were not pervasively sectarian. These colleges were affiliated with the Roman Catholic Church, but they neither received funds from,, nor made reports to, the Catholic Church. 426 U.S. at 755, 96 S.Ct. at 2349. The schools employed Roman Catholic chaplains and religious exercises were held on campus, but neither students nor instructors were required to attend. Id. Spiritual development was encouraged, but “at none of these institutions does this encouragement go beyond providing the opportunities or occasions for religious experience.” Id. Some mandatory religion or theology courses were taught, but the district court had required the Council for Higher Education, the organization overseeing the grants, to “take [additional] steps to ensure that no public funds would be used to support religious and theological programs.” Id., at 756 n. 20, 96 S.Ct. at 2349 n. 20. The district court also found that nontheology courses were “taught in an atmosphere of intellectual freedom.” Id., at 756, 96 S.Ct. at 2349 (internal quotation marks omitted). All of the colleges subscribed to and abided by the Statement of Principles on Academic Freedom of the American Association of University Professors. Id. Some of the classes started with prayer, but there was no policy requiring professors to do so. Id. For nontheology departments, faculty hiring decisions were not based upon religion. Id., at 757, 96 S.Ct. at 2350. Under such conditions, the Court stated, “there was little risk that religion would seep into the teaching of secular subjects, and the state surveillance necessary to separate the two, therefore, was diminished.” Id. As a result, the Court found that these schools were not so pervasively sectarian that state aid limited to secular interests would advance religion. Finally, in Bowen v. Kendrick, the Court held that federal legislation providing grants to pregnancy prevention programs did not violate the First Amendment on its face, although some of the funds went to religious programs. 487 U.S. 589, 617-18, 108 S.Ct. 2562, 2578-79, 101 L.Ed.2d 520 (1988). It would be improper, the Court stated, to assume that all such programs were pervasively sectarian. Id., at 611, 108 S.Ct. at 2575. The court remanded the case to determine whether the statute was unconstitutional as applied, implying that some benefits provided to a pervasively sectarian program may be violative of the First Amendment. Id., at 620-22, 108 S.Ct. at 2580-81. Although the circuit courts have applied the Supreme Court’s pervasively sectarian test to Establishment Clause cases, only the Fourth Circuit has attempted to set out the characteristics of a pervasively sectarian college under the guidelines of Hunt, Tilton and Roemer. Columbia Union College v. Clarke , 159 F.3d 151, 163 (4th Cir.1998). In Columbia Union, the court identified four “general areas of inquiry” when evaluating whether a school is pervasively sectarian: “(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.” Id. According to Columbia Union, evidence of the existence of a single factor would not be dispositive, and to find a school pervasively sectarian, the college must in fact possess a great many of the following characteristics: mandatory student worship services; an express preference in hiring and admissions for members of the affiliated church for the purpose of deepening the religious experience or furthering religious indoctrination; academic courses implemented with the primary goal of religious indoctrination; and church dominance over college affairs as illustrated by its control over the board of trustees and financial expenditures. Id. Under this line of analysis, the court must determine whether Lipscomb is so pervasively sectarian that the tax-exempt bond issue had the primary effect of promoting religion. To make this determination, “it is necessary to paint a general picture of the institution, composed of many elements.” Roemer, 426 U.S. at 758, 96 S.Ct. at 2350. The court must consider the character and purposes of Lipscomb, the nature of the tax-exempt bonds, the relationship between Metro and the Churches of Christ, and the message that was delivered when tax-exempt bonds were used to improve Lipscomb’s facilities. In doing so, the court will consider the following “pervasively sectarian factors” suggested by the plaintiffs and culled from the relevant case law: 1. Whether the school adheres to the American Association of University Professors (“AAUP”) Statement of Principles on Academic Freedom. 2. Whether the school is sponsored by a religious organization or church. 3. Whether the school teaches religious doctrine in its programs. 4. Whether institutional documents state religious restrictions on what can be taught. 5. Whether the board of trustees is elected by the church. 6. Whether the church approves certain financial transactions. 7. Whether a majority of students — or a percentage greater than the population in that area — are members of the church. 8. Whether religion or theology classes are required. 9. Whether classes begin with prayer. 10. Whether admissions are restricted based upon the applicant’s religion. 11. Wfiiether attendance is required at religious activities. 12. Whether obedience to the doctrine and dogmas of the faith are compelled. 13. Whether the school takes other actions to attempt to propagate a particular religion. c. Application of Pervasively Sectarian Test to Lipscomb In this case, evidence of the pervasively sectarian nature of Lipscomb is much stronger than that presented in Hunt, Tilton, Roemer or even Columbia Union College, and nearly all of these factors militate toward finding Lipscomb to be a pervasively sectarian institution. The land on which the construction projects funded by the bond proceeds were undertaken is subject to restrictive covenants that require that the property be used exclusively to further the religious mission of the institution so long as the property is owned by Lipscomb. (Docket No. 268, para. 6) The following policies are included in Lipscomb’s corporate charter and bylaws of the Board of Directors: 1. The corporation was organized for the purpose of teaching the word of God and the various branches of useful knowledge, commonly taught in institutions of learning for the following general purpose: the support of any literary or scientific undertaking as a college or university with the power to confer degrees of academy, a debating team lyceum, the establishment of a library, the support of a historical society, the promotion of painting, music and the fine arts, the support of the Board of Trade or Chamber of Commerce or other objects of like nature, the support of public worship, the building of churches and chapels and the maintenance of missionary undertakings. (Docket No. 268, para. 56(a))(emphasis added) 2. Each director must be a member of the Church of Christ in good standing in the congregation of which he or she is a member. (Docket No. 268, para. 56(b)(1)) 3. The president of David Lipscomb University is its chief executive officer with the general supervision of its business and Christian educational affairs. He has three principal duties: Christian education, public relations and financial. (Docket No. 268, para. 56(b)(3)) 4. The president, with the assistance of vice presidents and the principals shall maintain a Christian college that shall perpetuate the high Christian ideals as inaugurated by Harding and Lipscomb, the founders of David Lipscomb College in which the Bible is made the book of most importance, and shall maintain as nearly as possible such educational standards as may be adopted by the State of Tennessee, and of su