Steele v. Industrial Development Board of Metropolitan Government Nashville , 301 F.3d 401 ( 2002 )

SARGUS, D.J., delivered the opinion of the court, in which NORRIS, J., joined. CLAY, J. (pp. 417-40), delivered a separate dissenting opinion.

OPINION

SARGUS, District Judge.

Defendants have appealed the district court’s order granting summary judgment to Plaintiffs and issuing a permanent injunction prohibiting the Industrial Development Board (“Board”) and the Metropolitan Government (“Metro”) from issuing additional tax-exempt bonds to David Lipscomb University (“Lipscomb University”) or bonds to any other pervasively sectarian institution. (J.A. 1027-28). Metro and Lipscomb University also appeal the court’s denial of their separate motions for summary judgment. For the reasons that follow, we REVERSE the district court’s grant of summary judgment for plaintiffs and REVERSE the district court’s denial of summary judgment as to Metro and Lipscomb University.

I. BACKGROUND

The background of this case is well set forth by the district court which described Lipscomb University and its redevelopment project as follows:

David Lipscomb University, founded in 1891, describes itself as a “liberal arts university.” It is located in Nashville, Tennessee, and has an enrollment of approximately 2,500 students. 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. 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.

Steele v. Indus. Dev. Bd. of Metro. Gov’t of Nashville and Davidson County, 117 F.Supp.2d 693, 694 (M.D.Tenn.2000).

The district court then described the bonds the Board issued to Lipscomb University as those “typical of industrial revenue bonds that are commonly issued for educational or industrial purposes.” The Board issued the bonds pursuant to its authority under state law 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.).

This case was filed in the district court on May 30,1991, challenging the validity of the Board’s action in issuing the tax-exempt revenue bonds for the benefit of Lipscomb University. The plaintiffs are state and local taxpayers residing in the Nashville area. They contend that the issuance of tax-exempt revenue bonds for Lipscomb University provides an impermissible benefit to a pervasively sectarian institution, thereby violating the Establishment Clause of the First Amendment to the United States Constitution. Such aid, they argue, has the impermissible effect of advancing religion because a substantial portion of Lipscomb University’s functions are subsumed in its religious mission. The plaintiffs objected to the issuance of the bonds on this basis at public hearings and meetings of the Board on April 16, 1990, May 30, 1990, and January 22, 1991. The decision was made to issue the bonds, which is the basis of this case.

As to the ability of the plaintiffs to bring this suit, the district court explained that 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. The plaintiffs argued that tax dollars were being expended on behalf of a pervasively religious institution because the tax base of the state and local governments was reduced by the tax-exempt bonds. They asserted that, if tax-exempt bonds had not been issued, Lipscomb University would have financed all or part of the project through taxable bonds, which would have provided significant revenue for the city coffers.

The tax exempt bonds do not constitute an indebtedness of either the Board or the Metropolitan Government. 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 incident to 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.

The district 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 district court’s decision as to standing. Steele v. Indus. Dev. Bd. of 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).

With regard to the mechanics of the bonds at issue, the district court’s decision again provides a thorough summary:

Under 26 U.S.C. § 103 [Internal Revenue Code], 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).

Steele, 117 F.Supp.2d at 698 (emphasis added).

In the instant case, the bonds were issued for the benefit of Lipscomb University, a private educational institution. The bonds were issued for the purpose of renovating facilities on Lipscomb University’s campus. This meets the “private loan financing test” of section 141(c) because the entire amount of bond proceeds loaned to Lipscomb University exceeded the statutory minimum loan amount. Therefore, the bonds may be characterized as private activity bonds under 26 U.S.C. § 141(a) (1994). Further, the Loan Agreement between the Board and Lipscomb University specifically prohibits it from using any bond-financed facilities for religious purposes.¹ The bonds in question meet the technical requirements of 26 U.S.C. § 103.

For the bonds to be qualified as tax exempt, they must also meet the criteria under section 141(e). The bonds meet 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 University for use in building new facilities and in renovating existing facilities. Lipscomb University is a registered 501(c)(3) organization, thereby satisfying this requirement.

The district court summarized the final requirement as to public hearing and local approval as follows:

[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). Steele, 117 F.Supp.2d at 698.²

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 Lipscomb University are located.

II. STANDARD OF REVIEW

This Court reviews the district court’s grant of summary judgment de novo. See Gribcheck v. Runyon, 245 F.3d 547, 549 (6th Cir.2001). The standards applicable to such review are well established:

Summary judgment is appropriate where no genuine issue of material fact exists so that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The court determines whether “there are any genuine factual issues that properly can be resolved only by a finder of fact because 'they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Of course, “inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motions.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The movant meets its initial burden “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At that point, the non-movant “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e): Anderson, 477 U.S. at 250, 106 S.Ct. 2505, 91 L.Ed.2d 202.

Clayton v. Meijer, Inc., 281 F.3d 605, 609 (6th Cir.2002) (citation omitted).

III. ANALYSIS

The issue presented in this appeal is whether the issuance of tax exempt revenue bonds violates the Establishment Clause, if the bonds are for the benefit of an institution found by the district court to be pervasively sectarian.³ The issue has not been addressed by other Circuits or by the Supreme Court.⁴

The First Amendment, applicable to the states through the Fourteenth Amendment, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const, amend. I. The Supreme Court has consistently held that the Establishment Clause, prohibiting government establishment of religion, and the Free Exercise Clause, prohibiting government restrictions of the free exercise of religion, must function in harmony. Johnson v. Economic Development Corp., 241 F.3d 501, 509 (6th Cir.2001) citing Everson v. Bd. of Educ., 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Walz v. Tax Comm’n, 397 U.S. 664, 669-70, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).

A. Pervasively Sectarian Test

The district court concluded that Lipscomb University is a pervasively sectarian institution. The district court set forth the law governing this analysis as follows:

The pervasively sectarian test is based on the line of cases beginning with Tilton [v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) ], 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 “aid 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, 37 L.Ed.2d 923 (1973). Thus, the rule under the pervasively sectarian test, as stated in Roemer v. Board of Publ. 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. 2337.

Steele, 117 F.Supp.2d at 707 (parallel citations omitted).

The district court made the following finding:

The evidence presented in the depositions and literature of Lipscomb shows that, while Lipscomb may effectively teach a wide variety of secular courses, the central mission of the school is to inculcate and promote Churches of Christ doctrine as the true word of God. Students are taught entirely by Churches of Christ members; are informed of the importance of the Bible in all areas of their lives; are expected to attend Bible courses and chapel on a daily basis and surrounded by an environment thoroughly saturated by Churches of Christ doctrine. The school does not follow the Statement of Principles on Academic Freedom of the AAUP, and the section of the faculty handbook dealing with research states that the primary aim of every instructor should be to give superior academic instruction, emphasizing daily instruction in the Bible. Lipscomb’s Board of Directors, which controls all major decisions of the school, contains only members of the Church of Christ. Christian education is one of the three principal duties of the president of the school. In this environment, the chance that religion “would seep into the teaching of secular subjects,” as discussed in Roemer, 426 U.S. at 751, 96 S.Ct. at 2347, seems inevitable.

Id. at 715 (internal citations omitted). Accordingly, the district court found that Lipscomb University is a pervasively sectarian institution.

The vitality of the pervasively sectarian test is questionable in light of subsequent, more recent decisions from the Supreme Court. In Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000), six of nine Justices rejected an Establishment Clause challenge to loans of educational materials directly to parochial schools. Justice Souter pointed out in his dissenting opinion that “[N]o one, indeed, disputes ... that the Roman Catholic schools which made up the majority of the private schools participating, were pervasively sectarian....” In his plurality opinion, Justice Thomas responded by stating that:

“[T]he dissent is correct that there was a period of time 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. at 826, 120 S.Ct. 2530. Justice Thomas went on to note that the pervasively sectarian analysis, “born of bigotry, should be buried now.” Id. at 829, 120 S.Ct. 2530.

Yet, Mitchell is a plurality opinion. Thus, the district court, and this Court, are still bound by pre-Mitchell law with regard to the pervasively sectarian doctrine. As the district court correctly noted:

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, 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. 593, 1596-98 (1992).

Steele, 117 F.Supp.2d at 706 (parallel citations omitted).

Further, the Supreme Court has specifically stated that the lower courts are to treat its prior cases as controlling until the Supreme Court itself specifically overrules them. Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). In reaffirming its prior mandate the Court noted in Agostini that “if 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.” Id. citing Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). It is for the Supreme Court, not this Court, to jettison the pervasively sectarian test, which it has not done.

Regardless of whether the pervasively sectarian test is still the law, we conclude that, given the nature of the aid in question, the issue of the bonds does not offend the Establishment Clause.

B. Nature of the Institution Receiving the Aid

The precise type of aid at issue in this appeal is virtually identical to the bonding mechanisms involved in Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973). The Supreme Court described the program 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 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.” The South Carolina Supreme Court, in the opinion below, described the role of the State as that of a “mere conduit.”

Hunt, 413 U.S. at 745 n. 7, 93 S.Ct. 2868.

This passage would seem to indicate that a public body could serve as a conduit to allow a pervasively sectarian institution to receive the benefits of tax free bonds so long as public funds were not expended. Rather than reach such conclusion, however, the Supreme Court instead found that the schools at issue were not, in fact, pervasively sectarian and found it unnecessary to address the precise issue before this Court. Since Hunt, the Supreme Court has not addressed the issue.

More recently, in Johnson v. Economic Development Corp., 241 F.3d 501 (6th Cir.2001), this Court considered a case involving facts similar to Hunt, supra. In Johnson, a private Catholic school applied for and was granted an industrial revenue bond from the Michigan Economic Development Corporation, an agency of the State of Michigan. This Court held that the school, although a Roman Catholic institution, was not a pervasively sectarian institution. Id. at 515.

Because of this conclusion, the Court did not resolve the question of whether the granting of an industrial revenue bond to a pervasively sectarian institution is an unconstitutional form of aid. The Johnson Court did note, however, that:

[I]t is far from settled that the type of aid at issue in this case is direct aid within the meaning of the Establishment Clause jurisdiction.

Id. at 510.

Moreover, the Court also made the following observation:

Plaintiff claims that the tax-exemption under the EDC Act is the equivalent of a tax subsidy for purposes of the Establishment Clause.... The Supreme Court has expressly rejected the argument. “There is a constitutionally significant difference between subsidies and tax exemptions.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 590, & n. 25, 117 S.Ct. 1590, 137 L.Ed.2d 852 (citing Walz, 397 U.S. [664,] 690, 90 S.Ct. 1409, 25 L.Ed.2d 697 [ (1970) ]). The difference between subsidies and tax exemptions is that in giving tax exemptions “the government does not transfer part of its revenue ... but simply abstains from demanding the [entity] support the state.” Walz, 397 U.S. at 675, 90 S.Ct. 1409. Therefore, the benefit provided by the tax-exempt status of the bonds does not amount to a cash subsidy.

Id. at 511-12 (parallel citations omitted).

Judge Nelson, in a concurring opinion, was even more direct and concluded that conduit financing in the form of an industrial revenue bond does not offend the Establishment Clause, even if the benefit-ting institution is pervasively sectarian. Id. at 518-19. He concluded that the type of aid in question was no different than the indirect aid provided by property tax exemptions available to religious institutions and expressly approved by the Supreme Court in Walz, infra. Id. at 519.

In the case at bar, the Board provides pass-through or conduit financing services to a wide variety of nonreligious and religious nonprofit organizations. The Board has arranged tax exempt financing, for example, for a number of colleges and universities with and without a religious affiliation, as well as for low-income housing projects, the Country Music Hall of Fame, the Easter Seal Society, retirement centers, the Jewish Community Center, the Young Mens Christian Association, and Nashville Public Radio. (Cochran Aff. at 3-4; Pressnell Aff. at 2 & Ex. B). Further, similar conduit financing has been provided to a number of privately owned development projects.⁵ Significantly, no claim is made that the Board ever favored or disfavored one religion over another.

C. Nature of the Aid

Lipscomb University contends that the bonds represent indirect aid of the type the Supreme Court upheld in Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). The Walz Court held that a statute which provided a tax exemption for real estate owned by religious organizations did not represent an unconstitutional governmental attempt to establish, sponsor, or support religion. In language pertinent to this appeal, the Supreme Court noted:

The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenues to churches but simply abstains from demanding that the church support the state.

Id. at 675, 90 S.Ct. 1409. The Supreme Court concluded that “[t]here is no genuine nexus between tax exemption and establishment of religion.” Id.

Subsequently, the Court made clear that an indirect financial benefit conferred by a religiously neutral tax does not give rise to an Establishment Clause violation. In Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983), the Court upheld a tax deduction for amounts paid as school tuition, text books, and transportation.⁶ The Court acknowledged that “religious institutions benefit very substantially from the allowance” of this kind of tax deduction. Id. at 396 n. 5, 103 S.Ct. 3062. The Court found that both parents and parochial schools received a benefit, and the assistance “ultimately has an economic effect comparable to that of aid given directly to the schools attended by the children.” Id. at 399, 103 S.Ct. 3062. Irrespective of this benefit, the Court acknowledged its decisions “consistently have recognized that traditionally ‘[legislatures] have especially broad latitude in creating classifications and distinctions in tax statutes,’ Regan v. Taxation With Representation of Wash., 461 U.S. 540, 547, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), in part because the ‘familiarity with local conditions’ enjoyed by legislators especially enables them to ‘achieve an equitable distribution of the tax burden.’” Madden v. Kentucky, 309 U.S. 83, 88, 60 S.Ct. 406, 84 L.Ed. 590 (1940). Id. at 396, 103 S.Ct. 3062. Thus, a religious school’s receipt of indirect benefits through a tax deduction “does not require the conclusion that such provisions of a state’s tax law violate the Establishment Clause.” Id. at 396, 103 S.Ct. 3062. As long as the tax benefit is neutrally available,⁷ the Establishment Clause is not violated.

The only evidence of record is that similar bonds have been issued to both religious and non-religious institutions in a neutral manner. The financing in question has been made available to colleges and universities in Metro, as well as throughout Tennessee and the United States, and has been provided to a number of colleges and universities with different kinds of religious affiliations, and those without any religious affiliation.

In Mueller, the Supreme Court distinguished its holding in Nyquist v. Committee for Public Education and Religious Liberty, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). In Nyquist, the state legislation at issue included a wide range of government financial assistance in aid of private, predominately parochial education. State money was directed for maintenance and repair of private schools. In addition, the legislation provided for both direct tuition grants and tax credits payable to parents whose children attended private schools. In Mueller, the Court noted that the outright grants in Nyquist were fundamentally different from tax deductions given to all parents of public and private school students for education related expenses. 463 U.S. at 396 n. 6, 103 S.Ct. 3062. Further, unlike the deductions approved in Mueller, the deductions at issue in Nyquist were not based on actual expenses incurred. Instead, the deductible amounts were estimated and designed to equal the dollar amount of the direct aid in the form of tuition grants available only to low income families. Id. The Court concluded that these grants did not take the form of ordinary tax benefits and constituted direct aid to religious schools.

In Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 688, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989), the Court held provisions of the Internal Revenue Code permitting federal taxpayers to deduct gifts or contributions made to a variety of charitable organizations, including purely religious groups did not violate the Establishment Clause. In Hernandez, members of the Church of Scientology contended that the First Amendment prevented the IRS from deeming obligatory payments for attendance of “auditing sessions” as something other than a charitable contribution. Id. at 680, 109 S.Ct. 2136. The IRS contended that a mandatory payment to the church for auditing and training was not a gift, but rather a quid pro quo payment for services received and therefore not deductable. The Church of Scientology contended that the disallowance of such payments as charitable deductions violated the Establishment Clause, inter alia, by creating excessive entanglement between church and state. The Supreme Court found no excessive entanglement and, in language pertinent to the issue before this Court, stated that “routine regulatory interaction which involves no inquiries into religious doctrine ... no delegation of state power to a religious body ... and no ‘detailed monitoring and close administrative contact’ between secular and religious bodies ... does not of itself violate the non entanglement command.” Id. at 696-97, 109 S.Ct. 2136 (internal citations omitted).

Most recently, in Zelman v. Simmons-Harris, — U.S. at -, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), the Supreme Court again distinguished its holding in Nyquist. The Zelman Court found that the school voucher program in Ohio did not violate the Establishment Clause. The Court found that the program was controlled by its holdings in Mueller, Witters, and Zobrest. As to Nyquist the Court held:

To the extent the scope of Nyquist has remained an open question in light of these later decisions, we now hold that Nyquist does not govern neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without regard to religion.

Zelman, 122 S.Ct. at 2472.

In a concurring opinion in Zelman, Justice O’Connor explained that a government program is not constitutionally infirm solely because a substantial benefit is conferred on a religious organization. 122 S.Ct. at 2473 (O’Connor, J. concurrence). She explained:

Although $8.2 million is no small sum, it pales in comparison to the amount of funds that federal, state, and local governments already provide religious institutions. Religious organizations may qualify for exemptions from the federal corporate income tax, see 26 U.S.C. § 501(c)(3); the corporate income tax in many States, see, e.g., Cal. Rev. & Tax. Code Ann. § 23701d (West 1992); and property taxes in all 50 States, see K. Túrner, Property Tax Exemptions for Nonprofits, 12-Oct. Probate and Property 25 (1998); and clergy qualify for a federal tax break on income used for housing expenses, 26 U.S.C. § 1402(a)(8). In addition, the Federal Government provides individuals, corporations, trusts, and estates a tax deduction for charitable contributions to qualified religious groups. See §§ 170, 642(c). Finally, the Federal Government and certain state governments provide tax credits for educational expenses, many of which are spent on education at religious schools. See, e.g., § 25A (Hope tax credit); Minn.Stat. § 290.0674 (Supp.2001).

Most of these tax policies are well established, see, e.g., Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983) (upholding Minnesota tax deduction for educational expenses); Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (upholding an exemption for religious -organizations from New York property tax), yet confer a significant relative benefit on religious institutions. The state property tax exemptions for religious institutions alone amount to very large sums annually.

Id. (parallel citations omitted).

Similar to the benefits at issue in Walz, Mueller, Hernandez, and now, Zelman, the bonds at issue in this case are analogous to an indirect financial benefit conferred by a religiously neutral tax or deduction.

D. Method by Which the Aid is Issued

The method by which the tax exempt bonds are to be issued to Lipscomb University is significant. Any institution seeking a tax exempt bond must arrange the financing by locating exclusively private lenders of the funds. The purchaser of a bond has recourse for repayment against Lipscomb University only; the holder of a bond has no recourse against the Board or Metro in the event of nonpayment. No government funds are involved in the entire transaction. The interest paid to the bond holders by Lipscomb University is not subject to federal, state or local income taxes. Since the bonds are tax exempt, Lipscomb University reaps the benefit of a lower interest rate than that paid to a lender paying income taxes on the interest received. Only by the potential loss of tax revenue does the conduit financing involve any impact on public funds.

Initially, we note that a governmental body must issue the bonds. While at first blush such fact would indicate governmental endorsement of religion, the reason for the issuance of the bonds by a governmental agency stems from the simple fact that the Internal Revenue Code excludes from income taxation only interest paid on industrial revenue bonds issued and approved by a state or local governmental unit. 28 U.S.C. § 147(f)(2)(A). Such qualifying bonds need not finance a governmental function (such as water or sewer lines), but may be issued to promote a variety of purposes, including economic development and higher education. Further, Tennessee law requires such bonds serve the “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).

The federal government has continuously provided an exemption for interest on bonds issued “by or on behalf of’ states and localities since the inception of a federal income tax in 1913. Tariff Act of 1913, Pub.L. No. 63-16, ch. 16, 38 Stat. 114. Although states and localities first took advantage of this exception by issuing general obligation bonds, they later issued revenue bonds to help finance private business activities for the ostensible purpose of promoting economic growth. Stuart C. Johnson, Multi-Family Housing Bonds: Can the Tax Code Provide an Efficient and Effective Low-Income Housing Program, 5 Va. Tax. Rev. 497, 498-99 (1986) (citations omitted). Congress provided for an exemption from income taxation for industrial revenue bonds issued in connection with a project intended to benefit a local economy. The Internal Revenue Service explicitly legitimized this practice in 1954. Rev. Rul. 54-106, 1954-1 C.B. 28, 28-29.⁸ Such bonds have been typically issued by a governmental authority, even though such authority does not actually borrow the funds nor is such authority liable for repayment. “A revenue bond is repaid solely from the revenues generated by the facilities constructed with bond proceeds. In the issuance of this type of bond, the political subdivision acts solely as a conduit for issuing the bonds. It has no obligation to use its tax revenues to finance any shortfall.” Zimmerman, Limiting the Growth of Tax-Exempt Industrial Development Bonds: An Economic Evaluations (1984) (Cong. Research Serv. Rep. No. 84-37E).

In addition, by requiring local governmental authorities to issue tax-exempt industrial revenue bonds, Congress delegated to such governmental units an element of control over local economic development. The revenue bonds serve as a means of financing local preferences. See Clayton P. Gillette, Fiscal Federalism and the Use of Municipal Bond Proceeds, 58 N.Y.U.L.Rev. 1030 (1983) (discussing Section 103 of the Internal Revenue Code, which provides a federal tax exemption for interest earned on state and municipal bonds).⁹ For example, a local government might conclude that the issuance of an industrial revenue bond to a new business could give a competitive disadvantage to an existing business which had not received such conduit financing and result in economic displacement, rather than development.

It is clear from the record that industrial revenue bonds are issued to a wide variety of businesses, schools, universities, charities and other organizations. It is without question that a religious organization may receive “general government benefits” consistent with the Establishment Clause. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993). As the Supreme Court noted in Widmar v. Vincent, 454 U.S. 263, 274, 275, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), “If the Establishment Clause barred the extension of general benefits to religious groups ‘a church could not be protected by the police and fire departments or have its public sidewalk kept in repair’ ”. citing Roemer v. Bd. of Pub. Works., 426 U.S. 736, 747, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976). We conclude that the issuance of tax exempt bonds on a neutral basis is the conference of a generally available governmental benefit.

E. Primary Purpose and Effect of the Program

In her. concurrence in Zelman, Justice O’Connor reaffirmed that the modified Lemon Test is still a central tool in analysis of Establishment Clause cases noting:

As originally formulated, a statute passed this test only if it had “a secular legislative purpose,” if its “principal or primary effect” was one that “neither advance[d] nor inhibit[ed] religion,” and if it did “not foster an excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (internal quotation marks omitted). In Agostini v. Felton, 521 U.S. 203, 218, 232-233, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), we folded the entanglement inquiry into the primary effect inquiry. This made sense because both inquiries rely on the same evidence, see ibid., and the degree of entanglement has implications for whether a statute advances or inhibits religion, see Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’CONNOR, J., concurring). The test today is basically the same as that set forth in School Dist. of Abington Township v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (citing Everson v. Board of Ed. of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)), over 40 years ago.

Zelman, 122 S.Ct. at 2475 (2002) (O’Con-nor, J. concurring opinion) (parallel citations omitted).

As to the primary purpose, industrial revenue bonds advance a clear governmental, secular interest in promoting economic and educational development. Such conduit financing also promotes economic development though the underwriting of job-producing construction projects at colleges and universities. In turn, a more educated populace is better positioned to generate new development and economic opportunity. In a case involving industrial revenue bonds for a private religious high school, this Court held in Johnson v. Economic Development Corp., 241 F.3d at 512:

A state’s decision to assist businesses in their operation in order to create and maintain jobs — regardless of the type of businesses— ‘evidences a purpose that is both secular and understandable’, Mueller, 463 U.S. at 395, 103 S.Ct. 3062 ... Michigan could conclude that there is a strong public interest in promoting, assisting, and retaining commercial enterprises, both sectarian and non-sectarian.

As to the program’s primary effect, tax free revenue bonds have neither the effect of advancing or inhibiting religion, or as Justice O’Connor has “put it, of ‘endorsing] or disapproving] ... religion.’” Zelman, 122 S.Ct. at 2475 (O’Connor, J. concurrence) citing Lynch v. Donnelly, 465 U.S. at 691-92, 104 S.Ct. 1355 (concurring opinion). Metro’s program, “as in Mueller, ‘[ ] is made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted.’” Zelman, 122 S.Ct. at 2466 citing Mueller, 474 U.S. at 487, 106 S.Ct. 748.

The effect of Metro’s program is economic and educational development. Many states and local governments have used industrial revenue bonds to entice new, or expanded manufacturing, commercial, and educational projects. These projects, privately owned, are not financed with direct government funding, but are given preferential tax treatment through conduit financing. Lipscomb University seeks the same type of financing for the expansion of its facilities as could be sought by Walmart, Sears, or educational institutions. The Loan Agreement between the Board and Lipscomb University specifically prohibits it from using any bond-financed facilities for religious purposes. The projects Lipscomb University seeks to finance would provide no less economic development than a new store or a new manufacturing facility.

Further, as in the school funding program the Supreme Court upheld in Zel-man, Metro’s industrial revenue bond program does not present the perception of endorsement to the reasonable observer. “ ‘[T]he reasonable observer in the endorsement inquiry must be deemed aware’ of the ‘history and context’ underlying a challenged program.” Zelman, 122 S.Ct. at 2469 citing Good News Club v. Milford Central School, 533 U.S. 98, 119, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). As the Zelman Court stated:

Any objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a broader undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general.

Zelman, 122 S.Ct. at 2468.

Similarly, in the instant case, the objective observer of Metro’s industrial revenue bond program, knowing the history and context of this program, would reasonably view it as one aspect of a broader undertaking to finance economic development, not as an endorsement of religious schooling in general. Metro no more endorsed Lipscomb University than it did Wal-Mart in issuing industrial revenue bonds.

IV. CONCLUSION

Because the proposed issuance of industrial revenue bonds to Lipscomb University is part of a neutral program to benefit education, including that provided by sectarian institutions, and confers at best only an indirect benefit to the school, we hold that the issuance of the bonds does not violate the First Amendment.

In sum, the nature of the institution is not the relevant inquiry in the special type of aid at issue in this appeal. The nature of the aid conferred by the tax free revenue bonds is not direct aid. Instead, it is analogous to an indirect financial benefit conferred by a religiously neutral tax or charitable deduction and is indistinguishable from that expressly approved in Walz, supra. The funding vehicle is available on a neutral basis. No government funds will be expended. Nor does any holder of a bond have recourse against the Board or Metro in the event of non-payment. The benefit to be obtained by Lipscomb University is the same provided to private companies which create identical economic opportunities. The conduit financing advances a clear governmental, secular interest in promoting economic opportunity. Finally, the revenue bond program does not present the perception of government endorsement of religion.

Based on the foregoing, we REVERSE the district court grant of summary judgment for plaintiffs and REVERSE both the district court’s denial of summary judgment for Metro and its denial of summary judgment to Lipscomb University.

1 . The Loan Agreement between Lipscomb University and the Board does contain a restrictive use provision. Section 5.3 on "Special Covenants" states:

(s) The Borrower will not use the Project or any part thereof for sectarian instruction or as a place of religious worship or in connection with any part of the program of a school or department of divinity for any religious denomination or the training of ministers, priests, rabbis or other similar persons in the field of religion.

Steele, 117 F.Supp.2d at 727 citing Docket No. 13, attach. Ex. 12 at 18.

2 . 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— (i) 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. 103 — 2(f) (1999).

3 . In the following cases, the Supreme Court found government aid programs constitutional: Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (plurality) (providing educational materials and equipment to religious schools upheld); Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (allowing remedial public school teachers and counselors to assist at religious school); Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (providing printing facilities for all qualified student publications including religious publication constitutional); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993) (providing a sign language interpreter for deaf child in religious secondary school not unconstitutional); Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (funding for abstinence-based family planning programs offered by religious social welfare agency found constitutional); Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986) (offering vocational education scholarship to visually disabled seminarian not unconstitutional); Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980) (reimbursing religious school for performing state-mandated standardized tests and record keeping); Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977) (providing textbook loans, vocational training, diagnostic services, therapeutic and remedial services, and standardized testing and scoring for religious school); Roemer v. Bd. of Pub. Works, 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976) (subsidizing per-sludenl to a religious college constitutional); Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) (finding construction grants to religiously affiliated college constitutional); Bd. of Educ. v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) (loaning of textbooks for religious school upheld); Everson v. Bd. of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (reimbursing parents for bus transportation costs to religious school constitutional); Cochran v. Louisiana State Bd. of Educ., 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913 (1930) (loaning textbooks to religious school constitutional); Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899) (allowing federal funds to build a Catholic hospital constitutional).

4 . Several state courts have addressed the precise issue; all have found that the issuance of industrial revenue bonds is not tantamount to the giving of direct aid to religious schools. Opinion of the Justices, 354 Mass. 779, 236 N.E.2d 523, 526, 27 (1968) (concluding that tax-exempt bond financing is not a form of direct assistance to private or religious charitable institutions, as there was no grant or appropriation of public money, no loan of public credit, and the participants bore all costs of the program); Vermont Educ. Bldgs. Financing Agency v. Mann, 127 Vt. 262, 247 A.2d 68, 72 (Vt.1968) app. dism’d, 396 U.S. 801, 90 S.Ct. 9, 24 L.Ed.2d 58 (1969) (same); Nohrr v. Brevard County Educ. Facilities Auth., 247 So.2d 304, 307-09 (Fla.1971) (same); Cecrle v. Ill. Educ. Facilities Auth., 52 Ill.2d 312, 288 N.E.2d 399, 401 (Ill.1972) (same); Calif. Educ. Facilities Auth. v. Priest, 12 Cal.3d 593, 116 Cal.Rptr. 361, 526 P.2d 513, 515, 520 (Cal.1974) (same); Minn. Higher Educ. Facilities Auth. v. Hawk, 305 Minn. 97, 232 N.W.2d 106, 111 (Minn.1975); Washington Higher Educ. Facilities Auth. v. Gardner, 103 Wash.2d 838, 699 P.2d 1240, 1243, 1245-46 (Wash.1985) (holding that the tax exempt status did not create a debt or a borrower-lender relationship between the state and the religiously affiliated universities or the bondholders, the bond proceeds never entered the public treasury, repayment did not pass through the public treasury, and no state debt was created); Cortez v. Independence County, 287 Ark. 279, 698 S.W.2d 291, 292 (Ark.1985) (concluding that the tax-exempt revenue bonds were not a pledge of public money); Virginia College Bldg. Auth. v. Lynn, 260 Va. 608, 538 S.E.2d 682, 698 (Va.2000) (finding that the aid received from tax-exempt revenue bonds does not involve usage of governmental funds in the traditional sense in which the terms have been used). See also Durham v. McLeod, 259 S.C. 409, 192 S.E.2d 202, 203-04 (S.C.1972), app. dism’d for want of a sub'l fed’l question, 413 U.S. 902, 93 S.Ct. 3060, 37 L.Ed.2d 1020 (1973) (finding that tax-free revenue bonds satisfied solely by student loan payment were neither a state debt nor public money or credit).

5 . The Court notes that Congress has acted to limit the number of bonds issued by state and local government. The Tax Equity and Fiscal Responsibility Act of 1982, Pub.L. No. 97-248, § 214, 96 Stat. 324, 466-68 (codified at I.R.C. § 103(b)(6)).

6 . The Court found significant that these deductions were among many deductions allowed under Minnesota law. For example, the Court found that:

Deductions for charitable contributions, allowed by Minnesota law, Minn.Stat. § 290.21, subd. 3 (1982), include contributions to religious institutions, and exemptions from property tax for property used for charitable purposes under Minnesota law include property used for wholly religious purposes, § 272.02. In each case, it may be that religious institutions benefit very substantially from the allowance of such deductions. The Court's holding in Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), indicates, however, that this does not require the conclusion that such provisions of a State's tax law violate the Establishment Clause.

Mueller, 463 U.S. at 396 and n. 5, 103 S.Ct. 3062.

7 . The Mueller court found that "[M]ost importantly, the deduction is available for educational expenses incurred by all parents, including those whose children attend public schools and those whose children attend nonsectarian private schools or sectarian private schools.” The Court analogized to Widmar v. Vincent, 454 U.S. 263, 274, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), where it "concluded that the State's provision of a forum neutrally 'available to a broad class of nonreligious as well as religious speakers' does not 'confer any imprimatur of state approval,'" The Court concluded that "here: '[the] provision of benefits to so broad a spectrum of groups is an important index of secular effect.' ” Meuller, 463 U.S. at n. 7, 103 S.Ct. 3062.

We address the neutrality issue infra.

8 . The Service classified as tax exempt those bonds issued by a municipality to finance construction of privately used industrial plants, "notwithstanding the purpose for which they were issued or the fact that the promise to pay is limited to the revenue to be derived from leasing the property to be acquired. ... It is not necessary ... that the obligation be a general one, pledging the general credit of the municipality or the use of its taxing power.”

9 . According to the Senate Committee on Finance, S.Rep. No. 494, 97th Cong., 2d Sess. 168 (1982), the public notice and approval requirements were enacted to help eliminate inappropriate uses of tax-exempt financing and to help restore the benefit of tax-exempt financing for traditional governmental purposes. While acknowledging that state and local governments are best suited to determine the appropriate uses of industrial developments bonds, the committee concluded that industrial development bonds serve a legitimate purposes only if (a) the affected public has an opportunity to comment on the use of tax-exempt financing for particular facilities and (b) after that input, the elected representatives of the governmental unit determine that there will be substantial public benefit from issuing the bonds. H.R. Conf. Rep. No. 760, 97th Cong., 2d Sess. 518 (1982), 1982-2 C.B. 623-24. Based on this legislative history, Metro has clearly fulfilled its obligation under 147(f) to approve a bond issue that meets the public criteria.