The Volokh Conspiracy

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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.