Free Speech

Universities Can't Selectively Enforce Nondiscrimination Policies Based on Student Groups' Viewpoints

That’s a clearly established constitutional mandate, the Eighth Circuit holds, so a university can’t get qualified immunity from liability in such a case.


From Business Leaders in Christ v. Univ. of Iowa, decided yesterday by the Eighth Circuit, in an opinion by Judge Lavenski Smith, joined by Judge Duane Benton, and in relevant part by Judge Jonathan Kobes:

[University of Iowa registered student organizations (RSOs) enjoy] several benefits, including eligibility to apply for funds from mandatory Student Activity Fees, inclusion in University publications, utilization of the University's trademarks, and eligibility to use campus meeting facilities and outdoor spaces….

The University does not have an "all-comers policy" [under which every RSO must accept all would-be student members]…. [It has a nondiscrimination policy, under which] "[m]embership and participation in the organization must be open to all students without regard to 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." [But] the University has approved constitutions of at least six RSOs that expressly limit access to leadership or membership based on race, creed, color, religion, sex, and other characteristics that the Human Rights Policy protects.

First, Love Works requires leaders to sign a "gay-affirming statement of Christian faith."

Second, 24-7 requires leaders to sign and affirm a statement of faith and live according to a code of conduct, including abstaining from sexual conduct and relations outside of traditional marriage.

Third, House of Lorde holds membership "interview[s]" to maintain "a space for Black Queer individuals and/or the support thereof."

Fourth, the Chinese Students and Scholars Association limits membership to "enrolled Chinese Students and Scholars."

Fifth, the Hawkapellas, an "all-female a cappella group" requires a "vocal audition[]" for membership.

Sixth, the Iowa National Lawyers Guild requires all members to agree with the group's goal of bringing about "basic change in the structure of our political and economic system." [One of the university official defendants] {admitted that when certain groups, such as the Iowa National Lawyer's Guild, exclude individuals because of their political views, they violate the Human Rights Policy by discriminating based on an individual's creed}.

Business Leaders in Christ (BLinC) wanted to have a requirement that its leaders embrace its "Doctrine of Personal Integrity":

We believe God's intention for a sexual relationship is to be between a husband and a wife in the lifelong covenant of marriage. Every other sexual relationship beyond this is outside of God's design and is not in keeping with God's original plan for humanity. We believe that every person should embrace, not reject, their God-given sex.

But the university concluded that this "facially failed to 'comply with the University's Human Right's policy since its affirmation, as required by the Constitution for leadership positions, would have the effect of disqualifying certain individuals from leadership positions based on sexual orientation or gender identity, both of which are protected classifications.'" BLinC sued; the district court held in its favor; and the Eighth Circuit held that the university defendants weren't entitled to qualified immunity, because the University's actions violated the Free Speech Clause under "clearly established" law:

The University defendants have not appealed the district court's holding that they violated BLinC's First Amendment rights to free speech, expressive association, and free exercise through their disparate application of the University's Human Rights Policy. Instead, the focus of this appeal is limited to whether, for purposes of qualified immunity, the law was clearly established that the individual defendants' conduct violated those rights….

First, "it was clearly established at the time of these events" that the University's recognition of RSOs constituted a limited public forum. "As the Supreme Court has repeatedly pointed out, a university 'establish[es] limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects.'"

Second, "it was clearly established that a university may not discriminate on the basis of viewpoint in a limited public forum." …

Nonetheless, the individual defendants argue that there is no clearly established law "definitively decid[ing] the issue of the uneven enforcement of a nondiscrimination policy against registered student organizations on a university campus." But Walker and Reed [two Eighth Circuit precedents] both recognized the legal principle that a nondiscrimination policy neutral on its face violates a student group's rights to free speech and expressive association if not applied in a viewpoint-neutral manner….

Judge Kobes would have held that the university's actions violated clearly established Free Exercise Clause law as well:

Here, the individual defendants' choice to deny BLinC an exemption from the Human Rights Policy—while allowing exemptions for other secular and religious groups (that they approve of)—shows that they sought to advance their interests only against specific religious conduct. A policy cannot be generally applicable when it is deliberately enforced unequally….

Thanks to Howard Bashman (How Appealing) for the pointer.

NEXT: Actual Property Law in Cedar Point Nursery v. Hassid

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  1. Wait, you mean the Humpty Dumpty rule is not part of Constitutional law?

  2. “The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.”


    1. Do I hear “both”?

  3. Could the university have disposed of this case by saying “these other groups somehow snuck through the review process and now that we’re aware of them we’ll take corrective action” (as in particular I don’t see any real difference between this rejected group and a couple of the accepted ones). Although I suppose they might wish to somehow distinguish acceptance of some others, however difficult that might be.

    1. They probably could have – if they’d been willing to take the corrective action. Since this lasted long enough to get to not just the lawsuit but an appeal, it’s pretty clear the university was unwilling to do that.

      1. Not necessarily. They appealed only the qualified immunity aspect. If they had wanted avoid corrective action of some sort, they needed to have maintained that what they did was constitutional. Otherwise, even if the university won on qualified immunity, the student group could just apply again and if refused sue them saying that the rule had beckme clearly established in the previous suit.

    2. “Could the university have disposed of this case by saying ”

      You have to do more than “say” you have to do. At least if the judge is unbiased and has an ounce of sense.

    3. Doing so, they might jump out of the frying pan and into the fire, as by doing so they would offend multiple groups, including a legal foundation. This would also be unacceptable to political news and social media. By dragging this out, they maintain their political standing, even if it’s a transparently wrong decision that I would put in front of an elementary schooler as an example of what you cannot do.

  4. Any time an appellate rejects qualified immunity, it’s a big deal. And in the wake of Uzuegbunam this is worth something.

  5. This result seems basically right, although I’m not sure how the a capella group or the National Lawyers Guild are in violation of the non-discrimination policy. (I realize the defendants conceded the latter point.)

    1. Never mind on the a cappella group—presumably the “all female” part is the problem, not the audition requirement.

      1. Re National Lawyers Guild..

        “Admitted that when certain groups, such as the Iowa National Lawyer’s Guild, exclude individuals because of their political views, they violate the Human Rights Policy by discriminating based on an individual’s creed”

        1. As I said, I realize that one defendant conceded that. It just seems like an odd concession (and odd example from the plaintiffs), since the school policy provides that

          It is the policy of the University that all registered student organizations be able to exercise free choice of members on the basis of their merits as individuals without restriction in accordance with the University Policy on Human Rights. The University acknowledges the interests of students to organize and associate with like-minded students, therefore any individual who subscribes to the goals and beliefs of a student organization may participate in and become a member of the organization.

          There seem to be similar questions about Lowe Works, 24-7, House of Lorde (depending on what it means to “maintain ‘a space for Black Queer individuals and/or the support thereof.'”)

          1. It’s a bit of a conflict, since…

            “It (the university) has a nondiscrimination policy, under which] “[m]embership and participation in the organization must be open to all students without regard to 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”

            Now, if you can’t discriminate based on someone’s creed, but the National Lawyer’s Guild does discriminate based on creed…..

          2. On a larger note, this is going to be an increasing problem going forward.

            The “Congressional Black Caucus” can deliberately exclude (and has excluded) white members. But a Congressional “White” Caucus…well, that would be “racist” if it excluded Black members.

            What about a Congressional Catholic Caucus? That would technically be a minority. Or a Congressional Muslim Caucus? Congressional Jewish Caucus? Congressional Protestant Caucus? They would all be minorities. Could they exclude members? Why not like campus groups?

            1. Student status is different from that of Congresscritter.

  6. Next, you should take up the Biden policy which actively discriminates against “white” farmers….

  7. I’m just wondering how much this will cost these schmucks — hopefully, a lot.

    1. None. The university will indemnify the individuals. The taxpayers of Iowa will foot the bill.

      1. Can they?

        It may be unique to Massachusetts law, but there is something about how a public employee can *not* be indemnified if he ” acted in a grossly negligent, willful or malicious manner.”

        1. Plaintiff alleges in the alternative that public employee defendant was negligent, grossly negligent, reckless, willful, or malicious. The lesser mental states bring in the insurance company and government funds.

          In Massachusetts we have (or had) a $20,000 limit for tort liability by a charitable organization. The limit only applies to judgments against the organization itself, not its employees. Charities sometimes waive the limit by not pleading it as an affirmative defense.

        2. My next question is who gets to decide. Every state (or at least nearly every state) has a similar law regarding corporate indemnification of directors, officers, etc. They often have those same exclusions for grossly negligent, willful, or malicious acts.

          But the exclusion tends to be rather toothless because the corporations themselves get to evaluate that, and decision makers tend to have an incentive to have an expansive read of those provisions. Even if a person is ultimately found liable of the alleged conduct or convicted of a crime, the company is free (and often does) reach a different conclusion.

          1. It is not only that. Plaintiffs’ counsel well know that (1) there is only coverage or indemnificaiton for negligent, not willful, conduct and (2) that the deep pocket is the insurance company or the government entity, not the individual. So they have an interest in the defendant being found liable, but not willful, to make it easier to collect the cash. And they plead and prove accordingly.

        3. IMO, it would be a good idea to amend the Civil Rights Act to bar indemnification where there has been willful or reckless disregard of Constitutional rights. AND, to provide that the Court (almost always a federal court) can make such a finding. That would put some real deterrence in the law.

  8. Jeez. Is QI a metastatic skin cancer or what?

  9. Fledgling bigots whose stale beliefs are grounded in superstition have rights, too.

    1. As do those who make empty, gratuitous insults of those they disagree with.

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