Appeals Court Denies Immunity To University Officials Who Apparently Banned A Christian Student Group Just Because They Didn't Like It
from the if-you-can't-do-policy-right,-maybe-don't-do-it-at-all dept
The administrators of the University of Iowa have just learned a hard (and possibly expensive) lesson about free speech. Of course, as a publicly-funded university, it will be the taxpayers that foot the bill, but hopefully this recent Eighth Circuit Appeals Court decision [PDF] will head off future extractions of tax dollars from people who didn’t violate anyone’s rights.
This decision affirms the lower court’s determination that the University of Iowa’s decision to make a Chiristian student group align itself with the university’s ideals was a violation of the group’s First Amendment rights. Here’s Rox Laird with the background for Courthouse News Service.
The Iowa City-based state university revoked the status of InterVarsity Christian Fellowship as a registered student organization, saying the group violated the university’s human rights policy by requiring officers to affirm the organization’s statement of Christian faith, including an opposition to same-sex relationships.
A federal judge in Des Moines ruled in 2019 that the revocation violated InterVarsity’s First Amendment rights. The judge also ruled that individual administrators named in the suit were not entitled to qualified immunity protecting them from having to pay damages to plaintiffs out of their own pockets.
Laird refers to the existence of a mythical government entity called “own pockets,” but it’s excusable. The denial of qualified immunity means administrators are personally responsible. But years of protective legislation and lucrative (for insurers) insurance contracts ensure these legislators won’t actually be writing out checks from their personal accounts.
The administrators appealed the decision. But only part of it. Relying on the appellate level’s penchant for bypassing determinations of rights violations in favor of finding reasons to give government (or government-funded) employees a pass, the administrators only appealed the stripping of qualified immunity. They did not appeal the lower court’s determination that rights were violated. This basically means the administrators admitted to violating rights, but still hoped the next level of the court system would forgive them for doing so.
The administrators were wrong. The Eighth Circuit Court of Appeals notes that the university imposes all sorts of restrictions on Registered Student Organizations (RSOs). Some of these are unconstitutional, given the university’s position as a publicly-funded entity.
And, as the court points out, the university has not been consistent in its application of these unconstitutional restrictions, nor has it required student groups to be accepting of all applicants, despite its own RSO policies.
The University has also permitted religious groups to require members or leaders to affirm certain beliefs. In 2003, it allowed the Christian Legal Society to require its members to sign “a statement of faith” affirming Christian beliefs.It also approved the constitutions of other religious groups like the Imam Mahdi Organization, which requires leaders “to refrain from major sins” and requires both leaders and voting members to “[b]e Muslim, Shiea.” The University never thought these groups violated the Human Rights Policy.
But they obviously did. Here’s the University’s Human Rights Policy:
[I]n no aspect of [the University’s] programs shall there be differences in the treatment of persons because of race, creed, color, religion, national origin, age, sex, pregnancy, disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation, gender identity, associational preferences, or any other classification that deprives the person of consideration as an individual, and that equal opportunity and access to facilities shall be available to all.
On top of this inconsistency, there’s the university’s all-too-sudden determination the InterVarsity Christian Fellowship didn’t conform with policy. When you alter enforcement after a quarter-century of non-interference, you tend to raise litigious eyebrows.
Over twenty-five years, Iowa had no problem with InterVarsity. But in June 2018, Andrew Kutcher charged that InterVarsity’s constitution violated the Human Rights Policy. InterVarsity’s leader, Katrina Schrock, responded that the constitution did not prevent anyone from joining if they did not subscribe to the group’s faith, but that only its leaders were required to affirm their statement of faith. Kutcher countered that “[h]aving a restriction on leadership related to religious beliefs is contradictory to [the Human Rights Policy].”
This power move failed, resulting in the university booting InterVarsity from the RSO rolls, which then resulted in this lawsuit.
The Appeals Court first affirms (even though it didn’t need to) the rights violation. Inconsistent application of policies affecting speech tend to work out poorly for public entities. The University of Iowa is no exception. And it appears to have taken the lower court’s ruling to mean it could continue to apply its policy inconsistently to oust certain student groups.
The district court found that the defendants likely violated BLinC’s constitutional rights and ordered the University to apply the Human Rights Policy equally to all RSOs. But instead of doing that, the University started a compliance review that prioritized religious organizations. That review led to InterVarsity’s deregistration, along with other religious groups. The University’s fervor dissipated, however, once they finished with religious RSOs. Sororities and fraternities got exemptions from the Human Rights Policy. Other groups were permitted to base membership on sex, race, veteran status, and even some religious beliefs.
Fuck right off with that, says the Eighth Circuit.
We are hard-pressed to find a clearer example of viewpoint discrimination.
On appeal, the University and individual defendants do not try to argue their actions survive strict scrutiny. That is wise. Of course, the University has a compelling interest in preventing discrimination. But it served that compelling interest by picking and choosing what kind of discrimination was okay. Basically, some RSOs at the University of Iowa may discriminate in selecting their leaders and members, but others, mostly religious, may not. If the University honestly wanted a campus free of discrimination, it could have adopted an “all-comers” policy like the one in Martinez.
The First Amendment has clearly indicated on the Constitutional doll where the university violated it.
The University and individual defendants’ selective application of the Human Rights Policy against InterVarsity was viewpoint discrimination in violation of the First Amendment. It cannot survive strict scrutiny.
And it’s a violation of clearly-established precedent. The administrators are on their own.
What the University did here was clearly unconstitutional. It targeted religious groups for differential treatment under the Human Rights Policy—while carving out exemptions and ignoring other violative groups with missions they presumably supported. The University and individual defendants turned a blind eye to decades of First Amendment jurisprudence or they proceeded full speed ahead knowing they were violating the law. Either way, qualified immunity provides no safe haven.
The only explanation is that administrators truly believed no one would sue over the inconsistent application of First Amendment-bothering policies. Like a lot of public entities and officials, they decided the questionable reward was worth taking the tangible risk. They were wrong. The university has crapped out on consecutive levels of the federal court system, and it will now be forced to treat all RSOs as equal, rather than give preferred groups a pass on policy matters.