               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              February 27, 2015 Session

     VANDERBILT UNIVERSITY v. TENNESSEE STATE BOARD OF
                   EQUALIZATION, ET AL.

               Appeal from the Chancery Court for Davidson County
                   No. 1346IV    Russell T. Perkins, Chancellor




                    No. M2014-01386-COA-R3-CV-April 22, 2015


Vanderbilt University applied for a 100% property tax exemption for eleven of its
fraternity houses pursuant to the educational exemption, Tenn. Code Ann. § 67-5-
212(a)(1), or the dormitory exemption, Tenn. Code Ann. § 67-5-213(a). The State Board
of Equalization (“SBOE”) denied Vanderbilt‟s application, and Vanderbilt sought
administrative review. An administrative law judge and the Assessment Appeals
Commission both reached the same conclusion as the SBOE. Vanderbilt then sought
judicial review, and the trial court determined that the fraternity houses were entitled to
the 100% exemption because they satisfied the requirements for the educational
exemption. The State appealed, and we reverse the trial court‟s decision. The fraternity
houses are not used “purely and exclusively” for educational purposes, as that provision
has been interpreted and applied by the courts. We also decline to find the fraternity
houses qualify for the dormitory exemption because they are not used primarily for
dormitory purposes, as the statute requires.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

ANDY D. BENNETT, J., delivered the opinion of the court, in which RICHARD H. DINKINS,
and W. NEAL MCBRAYER, JJ., joined.

Herbert H. Slatery, III, Attorney General and Reporter; Joseph F. Whalen, Associate
Solicitor General; and Brad H. Buchanan, Senior Counsel, Nashville, Tennessee, for the
appellants, State of Tennessee Board of Equalization, Tennessee Assessment Appeals
Commission, and Attorney General and Reporter, Herbert H. Slatery, III.

J. Brooks Fox and Catherine J. Dundon, Nashville, Tennessee, for the appellant
Metropolitan Government of Nashville and Davidson County.
William L. Harbison and Carolyn W. Schott, Nashville, Tennessee, for the appellee,
Vanderbilt University.

                                                OPINION

       In this case we are asked whether eleven fraternity houses owned by Vanderbilt
University (the “Fraternity Houses”) are entitled to a 100% exemption from the property
tax laws either because of their educational purpose or because of their use as
dormitories. The Fraternity Houses were granted a 50% exemption decades prior to the
instant litigation, and their entitlement to that 50% exemption is not now at issue. Today
we are only concerned with determining whether their property tax exemption should be
increased from 50% to 100%.

                              FACTUAL AND PROCEDURAL BACKGROUND

        Beginning in the 1960s, Vanderbilt built houses for the fraternities and sororities
on its campus and leased the houses to the fraternities and sororities. Vanderbilt sought
an exemption from having to pay property taxes on those houses, which the local tax
assessor denied. Vanderbilt contested the denial, and in 1968, the chancery court entered
a consent order granting Vanderbilt a 50% tax exemption.1 One of the fraternities was
discontinued in 1985. When it was reinstated in 1988, Vanderbilt filed an application
with the State Board of Equalization (“SBOE”) seeking to reinstate the 50% exemption
for that fraternity‟s house. The SBOE denied Vanderbilt‟s request. Following
administrative appeals, the chancery court granted Vanderbilt the 50% exemption it
sought in a Memorandum and Order entered on July 7, 1992 (“1992 Chancery Court
Order”). Citing George Peabody College for Teachers v. State Board of Equalization,
407 S.W.2d 443 (Tenn. 1966), the court found that the fraternity‟s activities were
“directly incidental to and an integral party of Vanderbilt‟s educational program.” The
court found that, “[i]n addition to living and eating in the houses, students study therein,
have tutoring and study sessions, dances, and parties. On occasions, professors and
visiting speakers at the University conduct informal discussion groups in the houses.”

      At the time of the 1968 consent order and the 1992 Chancery Court Order,
Vanderbilt was leasing the Fraternity Houses to the national fraternities, which then
leased the properties to housing corporations for the local chapters. Under this
arrangement, the fraternities set the room and board rates, prescribed residential policies,
and made routine repairs. Starting in the early 2000s, Vanderbilt changed its relationship
with the Fraternity Houses pursuant to a Greek Facility Management Program that
Vanderbilt put into place. Leases with the national organizations were renegotiated as

1
    The record does not include the consent decree or any details of the litigation from the 1960s.


                                                       2
licenses, and Vanderbilt took control over the use and maintenance of the Fraternity
Houses. Vanderbilt began to bill the students who lived in the Fraternity Houses directly
and became responsible for managing the properties.

       In May 2007, Vanderbilt submitted property tax exemption applications to the
SBOE seeking a 100% exemption for the Fraternity Houses based on its new license
arrangement with the national fraternities. Vanderbilt claimed it was entitled to the
exemption pursuant to Tenn. Code Ann. § 67-5-212(a)(1), which exempts from taxation
real and personal property used “purely and exclusively” for educational purposes.2
Alternatively, Vanderbilt claimed it was entitled to the exemption pursuant to Tenn. Code
Ann. § 67-5-213(a), which exempts dormitories from property tax.3 On July 28, 2009,
the SBOE issued an initial determination denying the application. Vanderbilt appealed
this determination, and a hearing was held before an administrative law judge (“ALJ”) on
January 25, 2011.

        The ALJ issued an Initial Decision and Order dated July 22, 2011, affirming the
initial determination and holding that the Fraternity Houses were entitled to no more than
the 50% exemption they currently enjoyed. The ALJ concluded that the use of the
Fraternity Houses had not changed since the 1992 Chancery Court Order was issued and
that “the chapter houses are not used purely and exclusively by Vanderbilt for
educational purposes.” The ALJ also concluded that that the Fraternity Houses did not
qualify as “dormitories.”

                             Assessment Appeals Commission Decision

       Vanderbilt petitioned the Assessment Appeals Commission (the “Commission”)
for a review of the ALJ‟s Initial Decision and Order. A hearing was held on May 24,
2012, during which Stephen Caldwell, Associate Dean of Students, testified about the
2
 When Vanderbilt applied for the 100% exemption, Tenn. Code Ann. § 67-5-212(a)(1) (2003) stated in
relevant part:

          There shall be exempt from property taxation the real and personal property, or any part
          thereof, owned by any religious, charitable, scientific or nonprofit educational institution
          which is occupied and used by such institution or its officers purely and exclusively for
          carrying out thereupon one (1) or more of the purposes for which the institution was
          created or exists . . . . [N]o property shall be totally exempted, nor shall any portion
          thereof be pro rata exempted, unless such property or portion thereof is actually used
          purely and exclusively for religious, charitable, scientific or educational purposes.
3
    Tenn. Code Ann. § 67-5-213(a) has not undergone any changes since 2005, and it provides:

          Real estate owned by an educational institution and used primarily for dormitory
          purposes for its students, even though other student activities are incidentally conducted
          therein, and even though the student‟s spouse or children may reside therein, is exempt
          from taxation.

                                                       3
educational programs offered at the Fraternity Houses. He conceded that there is no
formal system of tutoring or lectures that goes on in the Fraternity Houses. He testified,
however, that the chapters sponsor at least four educational programs each year and that
65% of the membership must be present at each program. He explained:

       One program must be related to risk management, drugs, alcohol, hazing,
       sexual assault. One program must be related to members‟ health and
       wellness, healthy lifestyles, eating disorders, mental health, drug and
       alcohol abuse. . . . One program must be related to diversity, cultural,
       religious, political, racial. One program has to be the chapter‟s choice.
       And each chapter must plan at least one program to be a positive
       relationship with the faculty members each year. [Specific examples
       include] Zeta Pi, Professor Goodyear presented ethical and business
       practices; Alpha Tau Omega, professor appreciation dinner with professors
       from economics, engineering and math; Beta Theta Pi, presentation from
       criminal defense attorney; Kappa Alpha, professor sent out presentation on
       international diversity in business.

        The evidence showed that membership in each fraternity fluctuates somewhere
between forty and eighty, depending on whether freshmen have been admitted for the
year yet, but only up to six members actually reside in a Fraternity House, all of whom
must be officers of the fraternity. Dean Caldwell testified that Vanderbilt charges a fee to
members who live in the Fraternity Houses just as Vanderbilt charges students who live
in dormitories on campus. Nonresident members of the fraternities are charged a fee to
live in campus dormitories as well as a Greek facility maintenance fee that allows them
access to the Fraternity Houses. Dean Caldwell testified that the Fraternity Houses host,
on average, three parties each month where alcohol is permitted, and that third-party
security is provided by Vanderbilt for these parties.

        Dean Caldwell also testified about students‟ access to dormitories and to the
Fraternity Houses. Generally, a student does not have access to a dormitory unless he or
she is a resident there. For a Fraternity House, by contrast, resident members as well as
nonresident members have a key granting them access to the Fraternity House. Thus,
whereas the common areas of dormitories are limited to the students who live there, the
common areas of the Fraternity Houses are open to all members of the fraternity.

       The Assessment Appeals Commission entered its Final Decision and Order on
August 30, 2012, in which it affirmed the ALJ‟s decision. The Commission began by
addressing Vanderbilt‟s contention that the Fraternity Houses are used no differently than
the typical dormitory. Disagreeing with Vanderbilt‟s position, the Commission wrote:

              Most dormitories serve far more students. . . . The fraternity houses
       at issue here typically house at most six student fraternity members chosen

                                             4
      by the fraternity, usually its officers. Vanderbilt in modern times has
      constructed a range of living facilities for its students that now include . . . a
      collection of twenty ten-person lodges. Other specialty living facilities
      have been built in recent years for smaller resident groups, and there, like
      all dormitories, contain common areas where residents dine, relax, or study,
      but the area devoted to student-rented rooms predominates. Dormitories,
      but not fraternity houses, have information desks and continuous presence
      of university faculty, staff or other representatives.

              Unlike the dormitories, the properties at issue here were built as
      fraternity club houses, and the nonresident members of the fraternities
      defray the cost of maintaining and improving these club houses. The
      national fraternities, with whom the local chapters must be affiliated, have
      accumulated debt owed to Vanderbilt, and the university charges fraternity
      members and facilitates fundraising among fraternity alumnae, to pay down
      these debts and fund continuing improvements to the fraternity houses.
      Speakers from the university and elsewhere in government and academia
      are featured in the fraternities, but at the invitation of the fraternity, not as
      part of the educational program of the university.

             The university is solely responsible for placement of dorm residents.
      The dormitories are focused on living facilities for students assigned by the
      university, with university assigned dorm counselors. Social events in the
      dorms share nothing of the quantity and scope of their fraternity house
      counterparts. They are seldom if ever “registered” with the university, but
      fraternity social events are routinely registered, and third party security
      presence is required for registered social events in the fraternities.

       The Commission next addressed, and rejected, Vanderbilt‟s argument that the
Fraternity Houses serve an educational purpose. It stated:

             There are distinctly educational activities carried out at the
      fraternities, but they do not appreciably differ from those that supported the
      award of a fifty percent exemption in the past. They are merely
      coincidental to the primarily social purposes served by the fraternities.
      These social purposes contrast sharply with the primarily student housing
      uses of the dormitories, which are directly incidental to Vanderbilt‟s
      educational purposes. Fraternities afford their members a unique life
      experience that is valuable to their members, but these worthwhile social
      and personal experiences are distinct from the education Vanderbilt
      provides to its students, whether or not they are fraternity members.



                                              5
       The Commission concluded its analysis by stating: “[D]espite Vanderbilt‟s
ownership of the properties, their use does not differ appreciably from the time the one-
half exemption was approved in 1968 and 1992, and the properties are used at least as
much for the fraternities‟ purposes as for Vanderbilt‟s.”

                    Trial Court Decision Granting 100% Exemption

        Having exhausted its administrative remedies, Vanderbilt filed a petition in
chancery court in January 2013 seeking judicial review of the commission‟s decision
pursuant to Tenn. Code Ann. § 67-5-1511 and § 4-5-322. No additional evidence was
presented. A hearing was held on July 17, 2013, and on June 17, 2014, the trial court
filed a Memorandum and Order reversing the decisions below. The trial court declined to
find the Fraternity Houses are used “primarily for dormitory purposes for its students” to
satisfy the dormitory exemption, but it granted Vanderbilt the 100% property tax
exemption it sought based on the educational-purpose exemption set forth in Tenn. Code
Ann. § 67-5-212(a)(1).

      In ruling that Vanderbilt was entitled to the 100% exemption, the trial court
reviewed the 1992 Chancery Court Order and wrote:

             Consistent with Chancellor High‟s decision in 1992, this Court
      concludes that Vanderbilt‟s chapter houses meet the educational purposes
      exemption; that the chapter houses are an integral part of Vanderbilt‟s
      housing program; that Vanderbilt‟s housing program . . . is an integral part
      of Vanderbilt‟s educational program; and despite the Commission‟s
      emphasis on social activities in Vanderbilt-sanctioned, owned and managed
      student housing (the Properties) on its campus, no identifiable non-exempt
      uses (such as commercial activity) of the chapter houses appear in the
      record. . . .

              The changes Vanderbilt made beginning in 2001 are substantial,
      resulting in the national fraternities being removed from Vanderbilt‟s
      housing program – along with Vanderbilt assuming substantially more
      responsibility for control and maintenance, along with potentially
      heightened liability risks. The use of the Properties was squarely brought
      into line with Vanderbilt‟s campus-wide housing program while
      maintaining the benefits associated with Greek clubs on campus. . . .

             . . . The parties in the 1992 Chancery Court case presented only two
      options to the Court: a 50% exemption based, in part, on the 1968 consent
      order or no exemption at all. The question of a 100% exemption was
      simply not presented to the Court. The 1992 Court found that Vanderbilt
      was entitled to the educational purposes exemption. The Court agrees with

                                            6
      this determination and concludes that the . . . Greek Facility Management
      Program process that began in 2001 further tied the chapter houses to
      Vanderbilt‟s general housing and educational purposes that the Court‟s
      duty of liberal construction is obligated to take into account and give
      appropriate consideration. The Court agrees with Vanderbilt that there is
      no blanket requirement that a facility being considered for the educational
      purposes exemption be required to engage in conduct that approximates a
      system of formal instruction. Here, the Court concludes that the Properties
      qualify for the 100% exemption because they are occupied and used in
      ways that are directly incidental to and that are an integral part of
      Vanderbilt‟s educational mission.

        The SBOE, the Tennessee Assessment Appeals Commission, the Davidson
County assessor of property, the Attorney General of Tennessee, and the Metropolitan
Government of Nashville and Davidson County (together, the “State”) appeal from the
trial court‟s decision.

                                        ANALYSIS

      A. Standard of Review

       An appeal from the Tennessee Assessment Appeals Commission to the chancery
court is reviewable de novo. Richardson v. Tenn. Assessment Appeals Comm’n, 828
S.W.2d 403, 406 (Tenn. Ct. App. 1991). The trial court‟s review is governed by the
Uniform Administrative Procedures Act (“APA”), Tenn. Code Ann. § 67-5-212(b)(4),
and consists of a new hearing based on the administrative record in addition to any
additional evidence either party wants to introduce. Tenn. Code Ann. § 67-5-1511. The
APA addresses judicial review of administrative proceedings and provides:

      (h) The court may affirm the decision of the agency or remand the case for
      further proceedings. The court may reverse or modify the decision if the
      rights of the petitioner have been prejudiced because the administrative
      findings, inferences, conclusions or decisions are:

      (1) In violation of constitutional or statutory provisions;

      (2) In excess of the statutory authority of the agency;

      (3) Made upon unlawful procedure;

      (4) Arbitrary or capricious or characterized by abuse of discretion or clearly
          unwarranted exercise of discretion; or


                                             7
       (5)(A) Unsupported by evidence that is both substantial and material in the
       light of the entire record.

          (B) In determining the substantiality of evidence, the court shall take into
          account whatever in the record fairly detracts from its weight, but the
          court shall not substitute its judgment for that of the agency as to the
          weight of the evidence on questions of fact.

Tenn. Code Ann. § 4-5-322(h).

       Our review of the chancery court‟s decision is governed by Rule 13(d) of the
Tennessee Rules of Appellate Procedure, which states that we are to review the trial
court‟s findings of fact de novo, with a presumption of correctness, unless the evidence
preponderates otherwise. TENN. R. APP. P. 13(d); Richardson, 828 S.W.2d at 407. No
presumption attaches to the trial court‟s conclusions of law. Richardson, 828 S.W.2d at
407 (citing Adams v. Dean Roofing Co., 715 S.W.2d 341, 343 (Tenn. App. Ct. 1986)).

       B. Educational Purpose Exemption

        The educational purpose exemption is available for property that an educational
institution occupies and uses “purely and exclusively for carrying out one (1) or more of
the purposes for which the institution was created or exists.” Tenn. Code Ann. § 67-5-
212(a). The phrase “purely and exclusively” has been interpreted to mean that property
is exempt from property tax if the use is “„directly incidental to or an integral part of‟ one
of the recognized purposes of an exempt institution.” Methodist Hosps. of Memphis v.
Assessment Appeals Comm’n, 669 S.W.2d 305, 307 (Tenn. Ct. App. 1984). In that case,
the Court of Appeals affirmed the trial court‟s determination that property owned by a
hospital and used exclusively to provide free parking to individuals employed by and
associated with the hospital was entitled to the property tax exemption. Id. at 306-07.
The Court found that the parking facility was “an essential and integral part of” the
hospital where public transportation was unavailable and hospital personnel was required
around-the-clock. Id. at 307.

       The courts have had several opportunities to interpret and apply the property
exemption set forth in Tenn. Code Ann. § 67-5-212(a)(1) in cases involving a union
headquarters with parking facilities, LaManna v. Electrical Workers Local Union No.
474, 518 S.W.2d 348 (Tenn. 1974); a lodge used by the Elks Club, North Gates Elks
Club v. Garner, 496 S.W.2d 887 (Tenn. 1973); and a religious organization‟s real
property used for a cafeteria, snack bar, and parking lot, City of Nashville v. State Bd. of
Equalization, 360 S.W.2d 458 (Tenn. 1962), among others. Our Supreme Court has
explained that “[t]he real test determinative of [an entity‟s] tax exempt status is the use it
makes of the property.” North Gates Elks Club, 496 S.W.2d at 889.


                                              8
        “[T]he exemption granted by [Tenn. Code. Ann. § 67-5-212(a)(1)(A)] is construed
liberally in favor of the religious, charitable, scientific or educational institution.” Christ
Church Pentecostal v. Tenn. State Bd. of Equalization, 428 S.W.3d 800, 807 (Tenn. Ct.
App. 2013) (citing Book Agents of the Methodist Episcopal Church, S. v. State Bd. of
Equalization, 513 S.W.2d 514, 521 (Tenn. 1974)). However, “one claiming such
exemption has the burden of showing his right to it.” Book Agents, 513 S.W.2d at 521.
“The purposes of the exemption must be balanced against „the need for an equitable
distribution of the tax burden.‟” Christ Church Pentecostal, 428 S.W.3d at, 807 (quoting
Middle Tenn. Med. Ctr. v. Assessment Appeals Comm'n, No. 01A01-9307-CH-00324,
1994 WL 32584, at *2 (Tenn. Ct. App. Feb. 4, 1994), perm. app. denied (Tenn. May 9,
1994)).

       The trial court relied on the case George Peabody College for Teachers v. State
Board of Equalization, 407 S.W.2d 443 (Tenn. 1966), for its statement that “university
housing may qualify for the educational exemption because it is directly incidental to an
integral part of the educational mission of the school.” At issue in Peabody College was
whether apartments and houses owned by George Peabody College for Teachers, a non-
profit educational institution, and provided to its graduate students, were exempt from
property tax pursuant to the educational exemption that was the precursor to the version
of Tenn. Code Ann. § 67-5-212(a)(1) applicable to this case. Peabody Coll., 407 S.W.2d
at 443-44. Some, but not all, of these residences were on the Peabody College campus.
Id. at 444. The apartments were occupied either by unmarried students or married
students who shared the housing with their spouses and children. College officials
exercised “general supervision” over the apartments and houses, but these residences
were not monitored in the same way as the dormitories on the campus. Id.

        The Peabody College Court compared the facts of its case with the facts of an
earlier case in which real property owned by a university that was used for growing
vegetables to feed the students was found to be exempt from tax pursuant to an earlier
version of Tenn. Code Ann. § 67-5-212(a)(1). Id. at 445-46; see State v. Fisk Univ., 10
S.W. 284, 285-87 (Tenn. 1889). When the Peabody College case was initiated, there
was no dormitory exemption in the Tennessee Code. The Peabody College Court
reasoned that if property used to feed students was exempt from taxation, then property
used to house students should also be exempt because “[b]oth uses are directly incidental
to, and indeed an integral part of, the educational purpose of educational institutions.”
Peabody Coll., 407 S.W.2d at 445-46.

      While the Peabody College case was pending before our Supreme Court, the
Tennessee legislature enacted the dormitory exemption. Id. at 444-45. The Supreme
Court wrote,

       It might be appropriate to note here that since the decision of the State
       Board of Equalization, the Legislature has acted to insure that, in the future,

                                              9
           property of the nature here involved will not be taxed, by enactment of the
           [dormitory] subsection to T.C.A. s 67-502.

Id. at 444. Tennessee Code Annotated section 67-502 preceded the current Tenn. Code
Ann. § 67-5-213(a) and is substantially unchanged from the current version.4 Because of
the addition of the dormitory exemption to the statutory framework, there is now no need
to rely on Tenn. Code Ann. § 67-5-212(a)(1) to exempt student housing from taxation.

        The two cases most analogous to the facts here are City of Memphis v. Alpha Beta
Welfare Association, 126 S.W.2d 323 (Tenn. 1939), and State v. Rowan, 106 S.W.2d 861
(Tenn. 1937). Alpha Beta involved a local chapter of the Phi Chi Medical Fraternity of
Memphis. The members of the fraternity included alumni of the fraternity living in
Memphis as well as active members of the University of Tennessee‟s medical school. Id.
at 324. Fifty medical students lived in the fraternity and paid a monthly fee. The
fraternity was created to “promot[e] and provid[e] for medical and scientific education of
young men.” Id. A witness testified that the “real purpose” of the fraternity was to teach
the medical students things they could not learn through their classes, which the witness
called “the art of medicine.” Id. at 325. The older members acted as tutors to the
younger members who lived in the fraternity and often gave lectures in the evenings. Id.
The Court found there was “a system of instruction approximating that of teacher to
pupil.” Id. at 326. The fraternity was only allowed to hold six to eight dances per year,
and these were “careful[ly] supervis[ed].” Id. The Court found the fraternity was
“operated in accordance with the purposes set forth in its charter . . . for the better
education of the student members of the Fraternity, and its real property . . . is devoted
solely and exclusively to such purposes.” Id. at 326. Concluding that the fraternity was
entitled to the tax exemption set forth in what is now Tenn. Code Ann. § 67-5-212(a)(1),
the Court wrote:

           [T]he student members of the Fraternity by reason of being housed together
           receive medical, ethical, and cultural instruction that they otherwise would
           not get. The acquisition of the property in order that the students might be
           housed together was but the means to the end that the purpose of the Phi
           Chi Medical Fraternity to promote the welfare of medical students morally
           and scientifically might be more effectively carried out.

Id.

4
    The pertinent subsection of the earlier version of the statute read:

           The real estate owned or leased by an educational institution and used for dormitory
           purposes for its students, even though other student activities are conducted therein, and
           even though the student‟s spouse or children may reside therein.

Peabody Coll., 407 S.W.2d at 444-45.

                                                        10
        The other closely analogous case is State v. Rowan, 106 S.W.2d 861 (Tenn. 1937),
which involved real property owned by the University Club of Memphis. Evidence
showed that club was formed “to foster a spirit of fraternity among university and college
men, and to incorporate liberal culture and education . . . .” Id. at 862. Despite its
literary and educational objectives, however, the social and athletic activities at the club
predominated over any educational offerings. One of the club‟s officers admitted that
“considerable gambling and drinking transpired at the club,” id. at 864, and the evidence
showed that ten times as much money was spent on athletic activities and entertainment
as was spent on educational or charitable activities. Id. The court found that due to the
comparatively insignificant amount of time and money spent on the educational and
literary activities compared with the social and athletic activities, it could only conclude
that the educational and literary activities “must be regarded as incidental” to the social
and athletic activities. Id. The Court held, “While defendant club may be said to be an
educational institution in a broad sense, we think it cannot be regarded as an educational
institution” for purposes of exempting the club from the obligation to pay property taxes.
Id.

       The State contends that the Fraternity Houses are used more for social purposes, as
in Rowan, than for educational purposes, as in Alpha Beta. One document introduced as
an exhibit listed the social events at the Fraternity Houses for the 2008-2009 academic
year that were registered with the Office of Greek Life at Vanderbilt. Most of Fraternity
Houses at issue hosted at least five registered social events each semester of that year,
and one fraternity hosted sixteen social events each semester. Each of these events was
scheduled to last for four hours. The number of hours the Fraternity Houses spent
hosting these social events dwarfs the number of hours they spent providing educational
programs.

        Several students testified through depositions about their experiences at the
Fraternity Houses. One student who was a member of Sigma Nu testified that he and his
friends congregated at the Fraternity House to watch movies and sports. He described it
as “the living room for all of us.” Each student who gave his deposition testified that
alcohol was served at the registered social events, and one student testified that he
worked the doors of a party once that “had like 800 people come through.” Another
student testified that his fraternity hosted one to two parties per weekend unless they were
on probation. The students who had been officers of a fraternity and who spent one or
more years living at one of the Fraternity Houses testified that they spent some time
studying while living there. No testimony was offered, though, that the majority of the
nonresident members who spent time at the Fraternity Houses used their time for
studying or attending educational programs. Most of the nonresident members went to
the Fraternity Houses to “hang out” with their friends, watch movies, play video games,
engage in informal basketball or football games, and attend parties. One of the students
testified that Lambda Chi Alpha sponsored lectures by a faculty member or outside

                                            11
individual that took place only once a semester. The same student also testified that
Lambda Chi Alpha hosted parties once or twice a week.

       Richard Clayton Arrington was the senior director for student programs and
organizations within the Office of the Dean of Students at Vanderbilt. He testified
regarding educational programs held at the Fraternity Houses as follows:

       Q: [A]s we sit here today, you don‟t have any specific evidence of what
       lectures went on, the date they went on, the nature of them, or anything like
       that, do you?

       A: I don‟t have anything specific that I can present to you. I know that
       there‟s some - - I don‟t have any specifics to share with you, other than to
       tell you that there are - - there are lectures that - - and educational programs
       that occur in those houses on a fairly frequent basis.

        Vanderbilt contends that its policy of requiring all students to live on campus
contributes to the students‟ educational development and is an integral part of a
Vanderbilt education. Vanderbilt relies on the Peabody College case to argue the trial
court was correct in ruling that the Fraternity Houses are exempt because they provide
student housing and “are part of and integral to Vanderbilt‟s educational mission.”
However, as the Peabody College Court pointed out, now that the dormitory exemption is
a part of the statutory framework, the question whether student housing is exempt from
property taxes depends on whether it qualifies as “dormitory purposes,” not whether it is
used “purely and exclusively” for educational purposes. Vanderbilt‟s contention that the
Fraternity Houses should be exempt because of their role in providing student housing is
properly considered in light of Tenn. Code Ann. § 67-5-213(a), the dormitory exemption,
rather than in light of Tenn. Code Ann. § 67-5-212(a), the educational exemption.

       The determination of whether the Fraternity Houses are used “purely and
exclusively” for educational purposes (other than as student housing) depends on whether
they are “directly incidental to or an integral part of one of the recognized purposes of an
exempt institution.” Methodist Hospitals of Memphis, 669 S.W.2d at 307. Like the
University Club in Rowan, the members of the Fraternity Houses spend far more time
socializing than attending educational events. Despite Vanderbilt‟s insistence that the
Fraternity Houses are educational, the record contains no evidence of “a system of
instruction approximating that of teacher to pupil” at the Fraternity Houses, as was the
case with the medical fraternity in Alpha Beta. The use of the Fraternity Houses
determines whether they are entitled to the tax exemption, and we conclude the Fraternity
Houses are used more for social purposes, as the University Club was used in Rowan,
than for educational purposes, as the medical fraternity was used in Alpha Beta.



                                             12
       The fact that Vanderbilt is now in charge of the use and maintenance of the
Fraternity Houses does not mean the use of them has changed, and the use is ultimately
determinative of whether property qualifies for the educational exemption. Evidence was
introduced that the use of the Fraternity Houses by the students has not changed since
Vanderbilt implemented the Greek Facility Management Program and replaced the leases
it formerly had with the national fraternity organizations with licenses. The trial court‟s
conclusion that Vanderbilt‟s implementation of the Greek Facility Management Program
brought the Fraternity Houses “into line with Vanderbilt‟s campus-wide housing
program,” and, thus, entitled them to the educational exemption, was erroneously based
on the Peabody College decision.

      C. Dormitory Exemption

       The Assessment Appeals Commission and the trial court both concluded that the
Fraternity Houses are not used primarily for dormitory purposes, and, therefore, are not
exempt from property taxes pursuant to Tenn. Code Ann. § 67-5-213(a). This statute
provides as follows:

      Real estate owned by an educational institution and used primarily for
      dormitory purposes for its students, even though other student activities are
      incidentally conducted therein, and even though the student‟s spouse or
      children may reside therein, is exempt from taxation.

       The statute does not define the term “dormitory purposes,” and no cases in
Tennessee have interpreted this provision. When a term is not defined, courts give the
term its “ordinary and commonly accepted meaning.” Beare Co. v. Tenn. Dep’t of
Revenue, 858 S.W.2d 906, 908 (Tenn. 1993); accord State v. Thompson, 43 S.W.3d 516,
525 (Tenn. Crim. App. 2000). The online Merriam-Webster Dictionary defines
“dormitory” as (1) “a room for sleeping; especially: a large room containing numerous
beds” and (2) “a residence hall providing rooms for individuals or for groups usually
without private baths.” MERRIAM-WEBSTER ONLINE DICTIONARY, http://www.merriam-
webster.com/dictionary/dormitory (last visited March 25, 2015) (emphasis in original).

      The trial court noted that dormitories usually are designed for use by the people
who live there. In its Memorandum and Order, the trial court found the following facts:

      The chapter houses are used for housing up to six officers of the fraternity,
      as a local on-campus headquarters for the fraternity, and as a gathering
      place for members of the fraternity who do not live in the chapter house. . .
      . At Vanderbilt, the fraternity house is routinely used by all members of the
      fraternity – which greatly exceed the number of officers (6) who actually
      live there. Here, at the chapter houses there is what amounts to executive
      housing for the officers of the fraternity at the local campus headquarters of

                                            13
       the fraternity. It serves also as a kind of gathering place, clubhouse or
       community center for members of the fraternity.

        Vanderbilt does not contest these findings of fact, but it contends the Fraternity
Houses are no different than its traditional dormitories and should be treated no
differently for tax purposes. Vanderbilt warns that too much focus has been placed on
their role as a “clubhouse.” Substantial differences exist, however, when comparing
traditional dormitories with the Fraternity Houses. In addition to the findings by the trial
court, the evidence showed that members of fraternities regularly schedule “registered
parties” at the Fraternity Houses where security is required and alcohol is served.
Although evidence was introduced that students hold parties in the dormitories where
alcohol may be available, there was no evidence that Vanderbilt provides security for
these parties or that they are regularly registered with the university. Another important
difference is that nonresident members of the fraternities are required to pay a Greek
facility maintenance fee that is in addition to the regular residential fees these students are
charged to live in a dormitory. The record does not contain evidence of any dormitory
charging nonresident students a similar fee. There is also an important difference
regarding how students are selected to live in the Fraternity Houses that does not occur
with the dormitories. Residents of the Fraternity Houses are limited to the officers, which
means that the fraternities, not Vanderbilt, determine who will live in the Fraternity
Houses. In contrast, Vanderbilt decides who will live in the dormitories based on which
students apply for particular placements and the spaces available. Finally, as the ALJ
found, dormitories have information desks and an onsite presence of university faculty,
staff, or other representatives, which the Fraternity Houses do not have.

        We affirm the trial court‟s determination that the Fraternity Houses are not used
primarily for “dormitory purposes,” as required by Tenn. Code Ann. § 67-5-213(a), and
that the Fraternity Houses are not entitled to the dormitory exemption of the tax code.

       D. First Amendment Argument

       Vanderbilt contends that it “has determined that the on-campus residential
experience is part of and integral to the education that it provides.” According to
Vanderbilt, its “First Amendment right to educational autonomy” will be impaired if we
determine that its Fraternity Houses are not entitled to either the educational or the
dormitory exemption. This argument has no merit. Vanderbilt bases its argument on the
case Grutter v. Bollinger, 539 U.S. 306 (2003), which involved a university‟s decision to
consider race in admitting students to its law school. Grutter, 539 U.S. at 315-16. A
white student challenged the university‟s consideration of her race in denying her
admission, alleging the university discriminated against her on the basis of race in
violation of the Fourteenth Amendment to the United States Constitution. Id. at 316-17.
The Supreme Court of the United States upheld the university‟s right to consider race and
ethnicity in its selection of students because diversity contributed to the university‟s

                                              14
educational mission. Id. at 329. The Court wrote, “The Law School‟s educational
judgment that such diversity is essential to its educational mission is one to which we
defer.” Id. at 328.

         Vanderbilt contends that it, like the university in Grutter, has a constitutionally
protected First Amendment right to determine how it will fulfill its mission to educate its
students, and that it has determined that the on-campus residential experience, including
life in the Fraternity Houses, is integral to its educational mission.5 We agree that
Vanderbilt has a constitutionally protected First Amendment right to determine how to
fulfill its mission to educate its students. The record contains no evidence, however, that
the State has interfered with any of Vanderbilt‟s educational decisions. Vanderbilt‟s
determination that the Fraternity Houses provide a necessary component of its
educational mission does not mean that the Fraternity Houses are exempt from taxation,
regardless of how Vanderbilt characterizes the importance of the Fraternity Houses.6

        The use of the Fraternity Houses by the students is the basis for denying
Vanderbilt a 100% exemption from the property tax laws. For the reasons discussed
above, the Fraternity Houses qualify for neither the educational exemption nor the
dormitory purposes exemption. The legislature‟s decision to exempt property belonging
to educational institutions and used for educational or dormitory purposes is not a
directive compelling Vanderbilt to incorporate or not incorporate a particular approach to
its curriculum or educational mission. It is simply a limitation designed to ensure that the
intended benefit of the exemption – educational or dormitory purposes as contemplated
by the legislature – goes to the entities that are carrying out the described purposes.
Vanderbilt has put forth no evidence that the State has interfered with its First
Amendment rights in any respect, and the legal conclusion that neither exemption is
available to the Fraternity Houses does not prove such interference.




5
 Vanderbilt‟s argument hinges, in part, on its contention that the Fraternity Houses are “dormitories,”
which we have concluded is not the case.
6
  Vanderbilt‟s alternative argument, that denying Vanderbilt‟s Fraternity Houses the tax exemption is
tantamount to interfering with Vanderbilt‟s “right of freedom of association,” is equally unavailing.
Speiser v. Randall, 357 U.S. 513 (1958), on which Vanderbilt relies for its argument, involved a state‟s
attempt to condition a tax exemption on an individual‟s execution of an oath. Id. at 514. There is no
similarity between the facts or principles of Speiser and those here.

                                                  15
                                     CONCLUSION

       The trial court‟s decision granting Vanderbilt the educational exemption for its
Fraternity Houses is reversed, and the earlier decision by the Assessment Appeals
Commission is affirmed. Costs of this appeal shall be taxed to the appellee, Vanderbilt
University, for which execution shall issue if necessary.



                                                        _________________________
                                                        ANDY D. BENNETT, JUDGE




                                          16
