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.

Shots fired.

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.

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Comments on “Appeals Court Denies Immunity To University Officials Who Apparently Banned A Christian Student Group Just Because They Didn't Like It”

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33 Comments
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That One Guy (profile) says:

Good idea, abhorrent application

I’d be in favor of a university having rules in place making clear that if a group wants official recognition with the university they aren’t allowed to engage in discrimination but the fact that they only apparently cared to apply those rules to specific groups(the religious ones) sends a pretty damning message the the university staff don’t actually care about discrimination they were just using that as a club to engage in a little discrimination of their own.

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That Anonymous Coward (profile) says:

Re: Good idea, abhorrent application

As a card carrying homo, I know I would totes LOVE to spend my freetime in a group where they ignore the teachings of their religion to make sure they properly judge me for being teh gay.

rolls his eyes

I also look forward to being able to watch the Great Great Great Great Great Daughters of the Confederacy accepting African American members, because they really really need to be in a group thats trying to pretend they were helping the negros by keeping them form being shiftless layabouts when the good ones could work in the house.

kevinlloyd says:

Re: Re: Re:2 Good idea, abhorrent application

I imagine this is the exact thing the club was hoping to avoid.

What if you were an officer in a club that’s stated goal was gun control? Now, if pro-gun folks started attending your meetings, gained a following, and started becoming officials in the group, they would then have the power to turn "Reasonable People For Gun Control" to "Gun Nuts for Freedom in ‘Merica."

Let them have their club. If we don’t like their rules, we can form our own club.

Scary Devil Monastery (profile) says:

Re: Re: Good idea, abhorrent application

"As a card carrying homo, I know I would totes LOVE to spend my freetime in a group where they ignore the teachings of their religion to make sure they properly judge me for being teh gay."

You get both the insightful and funny vote.

Also the "sad but true".
What is more worrisome by far is the way this liberal University engages in the same type of hypocrisy that "christian" study group does. They could have used the opportunity to set up debates, consolidate what the liberal pov is all about for a generation of students. Instead they taught "Let’s ignore principle because we know we’re more right in this than they are".

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Anonymous Coward says:

Christian group?

They should follow the teachings of Christ, shouldn’t they?

You know what Jesus had to say about gays? Nothing, as far as I know. He did have that "Do unto others" line, though. And that bit about "Love your neighbour as yourself".

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kevinlloyd says:

Re: Christian group?

Taking one or two lines out of context does not describe the entirety of Christ’s teachings. For example, I can quote "Words build bridges into unexplored regions" and many would say it’s true and almost poetic. This same person reportedly said, "If you tell a big enough lie and tell it frequently enough, it will be believed" and also, "We shall only talk of peace when we have one the war. The Jewish Capitalist world will not survive the twentieth century." Of course these quotes are from Hitler.

Stated another way, saying "God is love" is like saying "Hitler was a painter." Both statements are true, but they both miss a larger point.

  • In Matthew 5:17-20, Jesus affirmed the moral law of the Old Testament, pronouncing judgement on anyone who relaxes any of the commandments, or teaches others to do so.
  • In Mark 7:20-23, he lists things that defile a person, including sexual misconduct. His listeners would have understood this to mean those things forbidden by the moral law of the Old Testament.

Just so we’re clear, the things prohibited by the moral law of the Old Testament include some of the following:

  • Adultery (Exod. 20:14, Lev. 18:20, Deut. 5:18).
  • Bestiality (Lev. 18:23, Deut. 27:21).
  • Homosexual acts (Lev. 18:22).
  • Incest (Lev. 18:6−18; Deut. 22:30; 27:20, 22−23).
  • Prostitution (Lev. 19:29, Deut. 23:18).
  • Rape (Deut. 22:25−29).
  • Sex before marriage (Exod. 22:16−17).

My point is I’m sure you can find a better argument. Jesus was clearly against these things. To claim he wasn’t is intellectually dishonest.

Anonymous Coward says:

Re: Re: Christian group?

You followed up your complaint about people using only a line or two out of context by cherry picking your own short excerpts and providing no context. If cherry picking is good enough for established religions then it’s good enough for critics. Plus that whole thing where religions just make up their own bullshit and attribute it to a higher power. I’m confident god does not have regular conversations with religious officials about how he loves Trump.

kevinlloyd says:

Re: Re: Re: Christian group?

Yes, I cherry picked with no context as an illustration of how misleading such a thing can be. I’m lead to understand it can be an effective way of making a point, but perhaps I’m mistaken.

Can you be more specific about making up BS? I’m just trying to understand that particular thread of your argument here.

I think Trump was a buffoon and hope he stays irrelevant.

Cheers.

Scary Devil Monastery (profile) says:

Re: Re: Christian group?

"My point is I’m sure you can find a better argument. Jesus was clearly against these things. To claim he wasn’t is intellectually dishonest."

Which just underscores the long held point that fundamentally the Abrahamic religions are rooted in codes of bigotry and malice. It’s no real wonder the natural end result of orthodox adherence is a slew of doom cults and a majority which has done it’s damndest best to dilute the message and grown more successful as a result.

On a side note, when people claim "Jesus Said" they always end up invoking passages from a document the catholic church produced during its most corrupt era as the final revised text applicable for keeping the herd of sheep from wondering too loudly about why the pope at the time merited a personal brothel. Bluntly put if accuracy is the goal, the Bible ain’t it. The most untampered-with scripture probably being the Torah.

It has to be noted, though, that every judeo-christian community inclusive of LGBTQ does so in direct contradiction of the charter they point to. That much is true. You literally can not be positive to LGBTQ and liberal values if you are an orthodox christian or jew (or, by extension, muslim).

The religious want to claim this points to LGBTQ being evil.
I personally think it points to the religious being evil.

The type of all-inclusive christianity or more secular judaism most people think of and like to advocate for…really isn’t. It’s as divergent a faith as protestantism was from old catholicism – even moreso as a lot of what is practiced today would be considered outright heresy in both denominations.

kevinlloyd says:

Re: Re: Re: Christian group?

My quibble was with the logic of the argument, not the truth of Christianity.

That said, I might ask that you don’t believe everything you read from Dan Brown or Bart Ehrman. They both propose preposterous premises in order to sell books. I can forgive Dan Brown because he sells what is labeled fiction.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Christian group?

"I might ask that you don’t believe everything you read from Dan Brown or Bart Ehrman. "

Pretty sure I haven’t read those. No, My assertion about the origins of the bible comes from the historical Council of Nicea and the later revisions of that work. The Vatican Apostolic Archive contains scriptures judged by various contemporaries as heresy, not proof of ancient aliens, the science of lost Atlantis, or treasure maps describing where the Lost Ark and the wealth of the Pharaohs are to be found.

"…not the truth of Christianity."

No such truth exists. What exists is often conflicting and contradicting hearsay and writings of hearsay about alleged supernatural events.
"Truth" is something self-evident and/or demonstrable. When such assertion is about the human condition then you may be able to cherry-pick individual lines out of both new and old testament…just that ideas such as "It’s better to be nice to others and not steal shit" isn’t exactly the wisdom of the ages or in need of a framework centered around fairytales or an invisible grandfather figure to work well for a community.

If christianity in itself holds "truth" then you wouldn’t be able to fit the Westboro Baptist Church or Opus Dei under the same denominator as, say, the Unitarians. It’s pretty obvious that christianity is a subjective faith, not an objective one. The ones coming closest to the latter would be the jews who’ve managed to retain their scripture largely unchanged for a few millennia now, for good and ill.

That makes it a bit hard for modern christians to avoid compartmentalized doublethink; If the bible is subject to personal interpretation then it’s just a set of guidelines, not holy and unshakeable scripture. And the people who believe this really shouldn’t be talking about "truth" given that they’ve already declared that absent in their choice of religion.
Ironically the ones who choose not to read their own book literally are usually the ones most intolerant of others doubting their personal faith. Maybe because only having faith means everyone who won’t agree with you on that gets interpreted or marginalized as a direct assault on their convictions.

If the holy book isn’t to be interpreted but read and understood literally you get something like fundamentalist Islam or…some more orthodox parts of Roman catholicism.

The ironic outcome of this is that those denominations of a religion who use interpretation as their guide tend to be the most extremist. Wahhabi Islam and Seventh Day Adventists, for instance. Whereas strict orthodox denominations leave far more liberalism between the imposed codes (Compare iranian fashion models under Iranian orthodox shi’a islam to the Wahhabi burqha-clad sunni woman, for instance).

Within the codes imposed of course, no leeway exists – which leads us back to the way that Chistianity is a religion inherently inimical to LGBTQ. As is every other Abrahamic religion offshoot where intolerance is built right into the foundational codes.

I usually assert that christianity, judaism and islam were progressive movements centuries and millennia ago, but they certainly aren’t well suited for enlightened societies where the worth and value of human life and dignity is understood.

They were just more acceptable faiths than the more ancient pantheons of asshat gods in circulation way back when.

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Anonymous Coward says:

Re: Christian group?

He said "do not sleep with man as with woman for that is an abomination"

This means you should reserve anal sex for man-on-man. No bum fun with the ladies I’m afraid.

Then Jesus gives you two thumbs up.

Up where, I’ll leave to your imagination.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Christian group?

Huh. I freely admit to not having experience in that field but having seen at least a few pages of the kama sutra I would guess that moving the entry hole a few inches to the back shouldn’t pose that many issues?

For all I know it may be correct that an abomination may occur if tried. I can envision some Patriarch in times long gone awkwardly waddling into the tribal meeting with muscles ruptured and stretched in painful places, taking down a notation of "Never do this" which then became Holy Writ for that particular tribe of horny goat herders unwittingly setting the baseline for a future religion…

Anonymous Coward says:

Re: Christian group?

There’s nothing in that, however, that says that loving others MUST include condoning what they do or how they live. That’s what many people miss. One can love the person while not agreeing with everything they do. Forced acceptance of a lifestyle is just as wrong when gays and their supporters try to do it as when the other side does it.

Scary Devil Monastery (profile) says:

Re: Re: Christian group?

"Forced acceptance of a lifestyle is just as wrong when gays and their supporters try to do it as when the other side does it."

To bigoted assholes I’m sure it’s "forcing acceptance" when they are being told not to discriminate.

Whether someone is gay or not? Their life, not yours. If you can’t live without disparaging other people then the bigotry is all from your side. No one is going to force you into homosexuality. But you are going to be forced not to openly discriminate others over their personal choices.

And when you are condemned over a lifestyle which includes disparaging other people then that’s not bigotry or you being "forced". It’s you – and your chosen lifestyle – being rightfully judged an asshole.

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Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"Find a better argument."

Like the one where judeo-christian faith mandates treating homosexuals as unworthy for existing?

For a faith proclaimed to be about love and tolerance they surely do go the extra distance to treat other people like garbage over both the way they were born and their personal choices.

I shan’t lie, I’m personally so straight homosexuality induces a lot of squick to me – and being aware of that I try to take great pains not to alienate my gay friends or say things easily interpreted as disparaging. If I’d been religious and thought there was a heavenly mandate that my unease was divinely inspired I’m sure I’d have turned out an unpleasant sort of bigoted asshole.

Religion brings out the absolutely worst in people. Whether it’s a simple cult of personality or the various doom cults all believing it’s time to rectify the "Great Disappointment" you will find no cinematic villain worse than what religion can produce.

kevinlloyd says:

Re: Re: Re:2 Re:

While one can find rabid zealots from any group to help illustrate a point, the majority of thinking Christians have conversations that go more like this:

Man: I want to do "x."
Christian: You are free to do it.
Man: But you think "x" is wrong.
Christian: Yes.
Man: Because you want to control me and tell me how to live?
Christian: No. You are free to do what you want.
Man: But you think "x" is wrong.
Christian: Yes. Because God says "x" is harmful and I don’t want that for you. I desire your ultimate good.
Man: But I want to do "x."
Christian: And you are free to do it.
Man: But I want you to say that "x" is good.
Christian: I cannot say that.
Man: Why do you hate me?

This is what I seem to encounter. Cheers.

Anonymous Coward says:

Re: Re:

You completely fail to understand Christianity.

Christians are all sinners alike, and are instructed to support and love each other in spite of whatever the sin that plagues them. There is no special dispensation for one sin vs another.

If you do not agree with that is sinful and what is not – who cares? You have no source other than your own preferences or popular opinions. There is no scientific basis on which to decide what is moral.

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