This fall, University of Iowa officials and their lawyer heard this from a federal judge:
I don’t think you understand free expression and viewpoint discrimination . . . . The University of Iowa may not selectively go after student groups based on what they think, based on what they advocate, whether it’s religious or otherwise . . . . That’s ludicrous . . . . [a]nd it’s incredibly baffling . . . that the University would make that choice[.]
Those stunning words came after the court was confronted with evidence that the University of Iowa had accused Christian, Sikh, Muslim, and other religious groups of discriminating based on religion and kicked them off campus simply for requiring their leaders to agree with their faith. But the University left untouched other groups with secular leadership requirements on mission alignment. So while startling, the court’s censure was well deserved. And it revealed two important nationwide trends: (1) that public universities frequently discriminate against religious student groups, and (2) that federal courts are catching on, and in ways that should put university officials on notice—discriminating doesn’t pay and, in fact, can rebound to hit them in their own pocketbooks.
Three recent cases—two arising from the University of Iowa and one from Michigan’s Wayne State University—showcase both trends.
At the University of Iowa, a campus policy prohibits discrimination on characteristics like race, sex, religion, sexual orientation, and disability. The policy supposedly applies to all university activities and registered student groups, but the University has categorically exempted huge swaths of its own activities and favored student organizations. Fraternities, sororities, and sports clubs, for example, have never been asked to stop selecting leaders or members based on sex. And political and ideological organizations are allowed to select leaders who embody the message of the organizations they lead. But in October 2017, religious groups started getting treated differently. First, the University targeted and ultimately kicked out the student group Business Leaders in Christ (“BLinC”) for asking its leaders to embrace its religious beliefs.
That resulted in a quick preliminary injunction in federal district court for BLinC, followed in February 2019 by the first major permanent victory for religious student groups in over a decade. The court awarded BLinC a permanent injunction. protecting its right to remain on campus and stating—in no uncertain terms—that the University’s policy could not be selectively enforced against BLinC’s religious leadership standards.
But in the meantime, the University had made a bad situation worse by deregistering a bunch of religious groups for their own religious leadership requirements. But, remarkably, the University gave a pass to one religious group with religious leadership standards because—in the University’s language—it provided a “safe space for minorities, which have historically been victims of discrimination.” Likewise, the University continued to exempt fraternities, sororities, and secular groups with ideological missions.
To regain equal access to campus, one of the deregistered religious groups, InterVarsity Christian Fellowship, was forced to go to court, ending up before the same judge who had earlier granted the BLinC preliminary injunction. This was the scene of the startling comments at the start of this article, a summary judgment hearing this September. The judge said she found the University’s behavior “ludicrous” and “incredibly baffling” in light of her prior ruling in the BLinC matter. In her subsequent written order, the judge went on to say that she “[did] not know how a reasonable person could have concluded [that selectively applying the nondiscrimination policy] was acceptable.” The court found the University’s conduct to be so egregious that it held the responsible officials personally liable for discriminating against InterVarsity in violation of clearly established law, bringing another major victory for faith-based groups on campus.
Unfortunately, the University of Iowa wasn’t alone in targeting InterVarsity. Wayne State University also kicked out an InterVarsity chapter, this one after 75 years on campus. And yet again, it was just because InterVarsity asked its leaders to embrace its faith. After temporarily reinstating the group under pressure from a lawsuit, Wayne State aggressively defended its power to kick out religious groups and accused InterVarsity of treating students like “second-class citizens” for requiring its leaders to be Christian. But, as in Iowa, a federal court rejected this argument, finding that InterVarsity plausibly alleged free speech, free association, and free exercise rights to select its own religious leaders.
These decisions are notable for many reasons, including two worth mentioning here. First, they show that the regrettable holding in Christian Legal Society v. Martinez, 561 U.S. 661 (2010), must be narrowly construed. In Martinez, the Supreme Court upheld the application of a so-called “all-comers policy,” which supposedly required all student groups to accept any students as members and leaders, regardless of their alignment with the group’s mission. So the College Democrats allegedly had to accept Republicans; tree-huggers had to accept tree-choppers, and so forth. But all-comers policies rarely, if ever, exist in the real world. Indeed, their existence even in the Martinez case was questionable. And there were certainly no all-comers policies at issue at the University of Iowa or at Wayne State, both of which employed policies much more typical of universities nationwide: policies that protect fraternities, sororities, single-sex sports teams and music groups, and various minority groups that—unsurprisingly—restrict their leadership to members of the represented minority. Thus, as the court noted in the Wayne State case, the Supreme Court “expressly limited its holding [in Martinez] to [the constitutionality of] an all-comers policy,” and Martinez is “of limited instructive value here,” where lots of groups are reasonably permitted to restrict their leadership and membership to like-minded, and even like-categorized, students.
Second, and relatedly, these cases—which are rooted in Supreme Court cases prohibiting viewpoint discrimination that go back decades and that were re-affirmed in Martinez—show that the law is clear that universities can’t discriminate against religious groups for having mission-based leadership standards, while favoring fraternities, sororities, sports clubs, and political or ideological groups that have their own leadership requirements. Indeed, in all three of the cases, the universities failed to identify a single legal ruling that would justify discrimination against religious student groups. Typically, government officials are immune from having to pay for government misconduct out of their own pockets, even if they were responsible for the wrongful conduct. But there is no immunity for violating clearly established law. And if anything is now clear, it’s that government officials violate the constitution when they forbid religious groups from doing what secular groups are permitted. Thus, the three cases put university officials on notice nationwide that engaging in religious viewpoint discrimination will come back to hit them personally in the pocketbook.
The next big shoe to drop is in BLinC’s appeal to the Eighth Circuit, where the court of appeals is considering whether the district court appropriately granted immunity to the university officials who first targeted BLinC. The briefing is complete and oral argument is expected in the winter. BLinC makes a strong case that the law has been clear on this issue for many decades. Indeed, there is already one Eighth Circuit decision as recently as 2017 upholding individual liability against officials at Iowa State University officials after they denied benefits to a student advocacy group promoting legalization of marijuana. That decision was based on a long line of cases dating back to the ‘70s, so a similar outcome in BLinC seems reasonably likely.
University officials everywhere should take notice that discrimination against religious groups on campus simply doesn’t pay. In fact, it will cost. And not just the university officials. Religious student groups have long been praised for their campus contributions to student well-being, persistence toward graduation, and a diverse and vibrant campus life. The cost of kicking them off campus hurts everyone.
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Gabriela Gonzalez-Araiza is a Constitutional Law Fellow at Becket - Religious Liberty for All