Miller v. Ayres

• Decision Date: 01 September 1972
• Citation: 191 S.E.2d 261,213 Va. 251
• Parties: Andrew P. MILLER, Attorney General of Virginia v. David B. AYRES, Jr., Comptroller of Virginia.
• Court: Virginia Supreme Court

Page 261

191 S.E.2d 261

213 Va. 251

Andrew P. MILLER, Attorney General of Virginia v. David B. AYRES, Jr., Comptroller of Virginia.

Supreme Court of Virginia.

Sept. 1, 1972.

Andrew P. Miller, Atty. Gen., William G. Broaddus, Asst. Atty. Gen. (D. Patrick Lacy, Jr., Asst. Atty. Gen., on brief), for petitioner.

Francis C. Lee, Richmond (McCaul, Grigsby & Pearsall, Richmond, on brief), for respondent.

A. E. Dick Howard, Charlottesville (Charles P. Light, Jr., Lexington, on brief), for petitioner amicus curiae.

Before SNEAD, C. J., and I'ANSON, CARRICO, HARRISON, COCHRAN and HARMAN, JJ.

HARMAN, Justice.

These petitions were filed by the Attorney General against the Comptroller under Code § 8-714 to determine the validity of Chapters 18 and 19 of the Acts of Assembly of 1972, ¹ sometimes hereafter referred to as the Acts. The proceedings were instituted when the Comptroller, in letters to the Attorney General, expressed doubt as to the validity of certain provisions of the Acts.

Chapter 18 and Chapter 19 are designed to implement the provisions of Article VIII, Section 11 of the Constitution of 1971. ² Each Act has as a purpose the appropriation of money from the General Fund for financial aid to undergraduate students at institutions of higher education in Virginia.

Chapter 18 provides for a program of tuition assistance in the form of loans to residents of Virginia who attend private, accredited and nonprofit institutions of collegiate education in Virginia whose primary purpose is to provide collegiate or graduate education and not to provide religious training or theological education, the program to be administered by the State Council of Higher Education. Chapter 18 restricts the aid to tuition assistance in the form of Loans, while Chapter 19 provides financial aid to be made in the form of Grants or Loans to students who wish to enroll, or are enrolled, in any accredited degree-granting public or private nonprofit, nonsectarian institution of higher education in Virginia, and in the form of Loans for students who wish to enroll, or are enrolled, in any accredited degree-granting private, nonprofit, Sectarian institution of higher education, excepting those institutions whose primary purpose is religious or theological education.

Both Acts provide for the repayment of loans in academic work or in money. Repayment in academic work shall occur if, at the end of the academic term for which the loan is made, the student shall have made satisfactory academic progress in his prescribed course. Chapter 18 provides that the term 'satisfactory academic progress' shall be evidenced by (1) the completion of a prescribed course of undergraduate study and the award of the appropriate undergraduate degree in recognition of the completion of such course of study; or (2) the eligibility of the student to continue his prescribed course of study in a succeeding term at the same institution in accordance with the academic and administrative rules which said institution applies generally in determining whether a student's performance entitles him to return for a succeeding term. Chapter 19 does not define 'satisfactory academic progress.'

Both Acts provide that the loan of any recipient who has not made satisfactory academic progress during the academic term for which the loan is made shall be due forthwith at the end of the term and repayable in money. Both Acts provide that where a recipient is compelled to withdraw from an institution during the academic year in order to perform military service, or for emergency or other meritorious reasons, his obligation to repay the loan in money shall be determined by the administering agency on a basis consistent with the principles applied by the public institutions of higher education in making tuition refunds in comparable cases of withdrawal.

Chapter 19 directs the Virginia Grant and Loan Commission to promulgate rules and regulations covering applications for grants and loans, to determine the criteria upon which awards will be based, and to require applicants to furnish such reasonable evidence of academic ability and financial need as is deemed necessary.

Both Acts have been funded by appropriations contained in Chapter 804 of the Acts of Assembly of 1972.

The Comptroller argues that both Acts are invalid because:

(1) the assistance provided by the Acts to students in the form of loans repayable in academic work contravenes the limitations placed upon the power of the General Assembly of Virginia in Section 11 of Article VIII, thereby violating Article I, Section 16, Article IV, Section 16, Article VIII, Section 10, and Article X, Section 8 of the Constitution of Virginia, as well as the First and Fourteenth Amendments to the Constitution of the United States; and

(2) The provisions of the Acts authorizing loans to students who may be attending sectarian institutions of higher education contravene the limitations placed upon the power of the General Assembly of Virginia by Section 11 of Article VIII of the Constitution of Virginia in that the appropriation of public funds for such purpose conflicts with the prohibitions in Section 16 of Article I, Section 16 of Article IV, Section 10 of Article VIII and Section 8 of Article X of the Constitution of Virginia, and violates the First and Fourteenth Amendments to the Constitution of the United States.

These arguments raise the four questions which are set forth below.

(1) Do Section 11 of Article VIII of the Virginia Constitution and the Acts violate the proscription imposed by the Establishment Clause of the First Amendment?

(2) Do Section 11 and the Acts violate the Fourteenth Amendment?

(3) Do the loans and grants authorized by the Acts violate the limitations imposed on the General Assembly by Section 16 of Article I, Section 16 of Article IV, Section 10 of Article VIII, and Section 8 of Article X of the Constitution of Virginia?

(4) Do the Acts provide for loans within the meaning of Section 11 of Article VIII?

I

Do Section 11 of Article VIII of the Virginia Constitution and the Acts violate the proscription imposed by the Establishment Clause of the First Amendment?

First, the Comptroller suggests that the First Amendment question would be eliminated if we construed Section 11 to limit loans to students who are attending nonsectarian institutions of higher education.

We must reject this suggestion, however, in light of the history of the section and the fact that to adopt this view would make the section meaningless.

Section 11 was added as a new section to the Constitution on July 1, 1971, in language identical with that proposed by the Commission on Constitutional Revision.

In its commentary on Section 11 the Commission had this to say:

'The proposed section, drafted in very precise language, allows two kinds of programs which the Commonwealth may undertake to assist non-profit institutions of higher education in Virginia (other than those whose purpose is to provide religious or theological education): state loans to students at such institutions, and the creation of a state agency or authority to assist in borrowing money for construction of educational facilities at such institutions.*

'The proposal is a modest, but important, response to the crisis facing private universities and colleges in Virginia. Private institutions presently enroll approximately one-third of all undergraduates in Virginia, at no expense to the Commonwealth. Yet rising costs are squeezing private colleges and universities to the point where a distinguished educator has expressed the fear that in ten years' time 'only a handful of extremely well endowed private institutions' in the entire nation 'will remain as viable quality institutions.'* In a number of states, private institutions have had to be absorbed into the state system as the only alternative to closing their doors. Should private colleges in Virginia be unable to pull their share of the load, the result would be serious on two counts: greater cost to the Commonwealth to educate students who would have been in private institutions, and a weakening of Virginia's rich heritage of pluralism and diversity in higher education.

'The Commission does not propose any state appropriations to private colleges and universities. Its proposals are much more modest. In the first place, the proposed section would allow the Commonwealth to extend to students in private institutions, whether church-related or not, loan programs available to students in public or private nonsectarian colleges in Virginia. For example, students in church-related colleges could be made eligible for the State Teacher Scholarships given by the State Board of Education. These loans, given to undergraduates preparing for teaching in the public school system, can be cancelled either by a specific period of teaching or by repayment.

'The proposed section has been fashioned so as to avoid involving the Commonwealth in religious activities. To begin with, the section excludes any aid to institutions whose primary purpose is to provide religious training or theological education.* Thus, for example, a theological seminary would not qualify. Among those colleges and universities which would qualify, the section makes no distinction between those which are church-related and those which are not. Many of the private colleges in Virginia are church-related, but typically they operate like any other college. For example, of the twelve members of the Association of Independent Colleges (composed of nearly all of the accredited private non-profit four-year colleges in Virginia) nine have some degree of church relationship. Yet none of the nine (all ineligible for any form of aid under the present Constitution) imposes any religious tests for student admission or faculty selection, and none serves primarily a single religious faith.* All, in short, are an integral part of Virginia's commitment to...