The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2018, the University of Iowa deregistered the InterVarsity Graduate Christian Fellowship. Although InterVarsity had been active on the Iowa campus for over twenty-five years, the University concluded that the group violated the university's anti-discrimination policies. Although membership in InterVarsity was open to all students, InterVarsity required those seeking leadership positions within the group to affirm the group's statement of faith, including "the basic biblical truths of Christianity."
In an effort to remain on campus, InterVarsity's then-leadership asked university officials whether a watered-down requirement would be acceptable. Specifically, they proposed changing the stated policy merely "request[ing]" or "strongly encourag[ing]" those who seek leadership positions to endorse the statement of faith. University officials rejected this proposed accommodation and proceeded to deregister the group.
ItnerVarsity sued the University for violating the free speech, free association, and free exercise rights of its members. Among other things, InterVarsity pointed out that the university had not been applying its nondiscrimination policy in a neutral or even-handed manner. Other student organizations were permitted to base membership and leadership policies on religious or other proscribed characteristics (including race and sex), but InterVarsity was not. The university even allowed another group to require members and leaders to sign a "gay-affirming statement of Christian faith," but InterVarsity could not merely request or encourage leaders to affirm its more conservative statement of faith.
As one might expect given the facts (as the Becket Fund's Daniel Blomberg notes here), things did not go so well for the University of Iowa. In an opinion last month, the U.S. Court of Appeals for the Eighth Circuit noted it was "hard-pressed to find a clearer example of viewpoint discrimination" than was presented here. It selectively applied and enforced its nondiscrimination policy against organizations with particular religious or other viewpoints, while simultaneously exempting whole categories of secular organizations, but not religious ones.
InterVarsity did not merely sue seeking renewed recognition as a student group. It also sought damages from university officials, prompting the defendants to claim qualified immunity. No dice, said the Eighth Circuit, noting that the First Amendment prohibition on viewpoint discrimination against student groups was clearly established by both Supreme Court and circuit precedent. Indeed, the court noted, InterVarsity was not the first student organization to successfully raise a viewpoint discrimination claim against the University of Iowa. Wrote Judge Kobes for the court: "If the law was clearly established when the University discriminated against [Business Leaders in Christ, it was clearly established when they did the same thing to InterVarsity."
From the opinion:
We acknowledge that the intersection of the First Amendment and antidiscrimination principles can present challenging questions. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719, 1732 (2018) (noting that the conflict between Colorado's anti-discrimination law and a baker's First Amendment rights created "issues  difficult to resolve"). "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions." Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). And, if applied properly, it protects "all but the plainly incompetent or those who knowingly violate the law." Id. (citation omitted).
But as Justice Thomas asked in Hoggard v. Rhodes, "why should university
officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?" __ S.Ct. __, *1 (2021) (Thomas, J., statement regarding denial of certiorari). 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.
Administrators at state universities should take note.