Last month, the Eighth Circuit rebuked the University of Iowa for its efforts to derecognize student religious groups because they require their leaders or members to agree with their religious beliefs. The First Amendment protects the right of people to come together around common beliefs, which also means they can exclude those who disagree with their beliefs, the Eighth Circuit ruled. That common-sense principle from the First Amendment means the campus socialists can exclude free-market libertarians, the environmentalist group does not have to allow student lumberjacks or oil riggers to join, and the U of Iowa Vegans can stop student hog farmers and pheasant hunters from joining.

That free speech rule also applies to religious groups. As constitutional scholar Michael McConnell has said, when a Jewish synagogue requires its rabbi to believe in the tenets of Judaism, it is exercising religious freedom, not engaging in discrimination.

But officials at the University of Iowa have for years sought to defy this First Amendment principle. On July 16, the Eighth Circuit ruled against the Hawkeye administrators a second time for their ongoing and selective viewpoint discrimination against student religious groups in Intervarsity Christian Fellowship v. University of Iowa. The Eighth Circuit also rejected the university’s argument that its officials should have qualified immunity from paying damages to Intervarsity Christian Fellowship, based on their claim that it is still unclear that Christian student groups have the First Amendment right to require their leaders to believe in Christianity.

Some quick background: At most state university campuses, student organizations must be officially recognized as Registered Student Organizations (RSO) to receive important benefits from the university, such as access to student fee funding and the right to meet in campus facilities for little or no charge. Student groups need these important benefits in order to advocate their ideas on campus. Therefore, a university has the power to effectively suppress the ability of student groups advocating ideas the university dislikes by denying them RSO status.

Frequently, state universities will require student groups to sign a nondiscrimination statement to receive RSO status. The policy at the University of Iowa bars discrimination based on fifteen characteristics, including race, sex, religion, and veteran status, as well as a sixteenth catch-all provision banning discrimination “that deprives the person of consideration as an individual . . .” The Iowa policy also acknowledges that a student organization can require a member “to subscribe[] to [its] goals and beliefs.”

However, the University of Iowa (like many other universities) manipulates and selectively enforces these nondiscrimination policies to permit some student groups to meet whose membership standards clearly violate the policy. For example, university officials have granted exemptions allowing fraternities to remain men-only and sororities to limit their members to women. The university has allowed some groups to limit themselves to one racial group (e.g., African Student Association and the Society of Hispanic Professional Engineers) and other groups to limit membership to students who have served or are serving in the military. All of these approved restrictions violate the policy’s ban on limiting membership based on race, sex, and veteran status. Iowa has also allowed student groups to exclude students who do not agree with their views, including religious views in some cases.

To be clear, Iowa’s exemptions are reasonable and make sense. If Iowa enforced its nondiscrimination policy across the board, many of these groups could not exist.

 But the University of Iowa fully enforces the policy against Christian student groups, refusing to grant them exemptions it grants to many other groups. Several years ago, Iowa targeted Business Leaders for Christ for requiring its student leaders to affirm its Bible-based belief that marriage is defined only as one man and one woman. It denied Business Leaders for Christ status as an official RSO, effectively exiling the group from campus life. Business Leaders for Christ sued and won a preliminary injunction against this viewpoint discrimination, which the Eighth Circuit affirmed.

Undeterred by this significant court loss, the university then initiated an effort to examine the constitutions of all student organizations. This effort ended up targeting the religious ones. Iowa derecognized a number of campus Christian groups for advocating the biblical definition of marriage as one man and one woman, including Intervarsity Christian Fellowship. Somehow, in the university’s mind, its recent court loss for doing the same thing did not apply to its current efforts.

The university derecognized Intervarsity because “[h]aving a restriction on leadership related to religious beliefs is contradictory” to university policy. Intervarsity sued. (In both cases, attorneys from Becket Law represented the religious groups against the University of Iowa.)

The district court ruled in favor of Intervarsity, and the Eighth Circuit affirmed last month. The Eighth Circuit ruled that the University of Iowa had created a limited public forum for student speech on campus. The court ruled that the university engaged in unconstitutional viewpoint discrimination by excluding Intervarsity but recognizing another student group, Loveworks, that requires its members and leaders to sign a “gay-affirming statement of Christian faith.” The university allowed Loveworks to exclude as leaders students who believe the Bible teaches a traditional Christian definition of marriage, but it derecognized Intervarsity for limiting its leaders to those who agree with the traditional Christian definition of marriage. In other words, the university only went after more conservative religious groups for excluding students as leaders who, in the minds of university officials, hold incorrect religious views on same-sex marriage. The Eighth Circuit stated, “we are hard-pressed to find a clearer example of viewpoint discrimination.” It is surprising that the University of Iowa’s lawyers did not catch this First Amendment violation.

Under Supreme Court precedent, the university could only justify this viewpoint discrimination with a compelling state interest. The university cannot meet this standard by articulating a state interest at a high level of generality, like “fighting discrimination,” because the university does not enforce this interest consistently. The university’s defense means it must prove the impossible: that it has a compelling state interest in selectively enforcing the nondiscrimination policy against the Christian student groups, while giving a pass to student groups violating the same policy’s prohibitions on discrimination based on race, sex, and veteran status.

Iowa also argued that its officials sued personally for damages should be protected by qualified immunity from paying Intervarsity because the group’s First Amendment rights were not “clearly established” at the time the university violated them. The Eighth Circuit quickly rejected that argument, citing multiple court decisions going back to 1972 stating that university officials may not favor or exclude student groups based on the viewpoint they espouse.

At Iowa, these officials had months to consult with university lawyers on how to apply the nondiscrimination policy and what exemptions to grant under a half-century of Supreme Court and Eighth Circuit court decisions prohibiting viewpoint discrimination. The Eighth Circuit recalled Justice Clarence Thomas’s dissent from denial of certiorari last July in Hoggard v. Rhodes: “[W]hy 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?”

From my experience litigating First Amendment cases against state universities in the past, it is amazing how many university officials reject their duty as state officials to obey the First Amendment, and instead do what they want with their zealous yet selective enforcement of nondiscrimination policies. The Eighth Circuit concluded with this rebuke to the officials at the University of Iowa who claimed their actions should not be punished:

[University officials] 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.

Will the University of Iowa finally stop violating students’ First Amendment rights, especially those who do not conform to the prevailing orthodoxy on campus? Stay tuned.

 

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