Litigation Update: InterVarsity Christian Fellowship/USA v. University of Iowa et al.

Free Speech & Election Law Practice Group Teleforum

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On July 16, 2021, the U.S. Court of Appeals for the Eight Circuit issued a decision in InterVarsity Christian Fellowship/USA v. University of Iowa et al.  A three-judge panel composed of Circuit Judges Loken, Grasz, and Kobes held that University officials violated the First Amendment when they deregistered a Christian student group, further holding that the university officials were not entitled to qualified immunity. 

The University of Iowa deregistered two Christian student groups, finding that the groups violated the University’s “Human Rights Policy” by requiring their membership and/or leadership to sign a statement of faith in order to join.  The first group—Business Leaders in Christ—sued and successfully received a preliminary injunction.  Following that litigation, the University reviewed its human rights policy and then deregistered the second group—InterVarsity Christian Fellowship.  InterVarsity fought the deregistration, then sued alleging the application of the human rights policy was discriminatory and arguing First Amendment free speech, free association, and free exercise violations in addition to several state law claims. 

Not only did the District Court enter summary judgment for InterVarsity, but the Court also denied individual University defendants qualified immunity relying on the earlier Business Leaders in Christ preliminary injunction grant.  The University appealed and the Eighth Circuit affirmed in a decision with implications for campus free speech, religious liberty after Fulton, and qualified immunity.

Featuring: 

  • Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Propserity; Senior Fellow for Free Speech, Charles Koch Institute 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, July 23, we discuss the Eighth Circuit’s recent decision in InterVarsity Christian Fellowship USA v. University of Iowa. My name is Evelyn Hildebrand, and I’m an associate director of practice groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call.

 

Today, we are fortunate to have with us Mr. Casey Mattox. He’s the vice president for legal and judicial strategy at Americans for Prosperity and he is a member of The Federalist Society’s Free Speech and Election Law Practice Group executive committee. We’re very pleased to welcome him today.

 

After our speaker gives his opening remarks, he’ll turn to you, the audience, for questions, so be thinking of those as we go along. If you do have a question, you can enter into the Q&A feature at the bottom of your screen, and you can actually enter those questions at any time during today’s presentation. You can also ask a question verbally. So, if you press the raise hand button at the question-and-answer portion of today’s event, then you can take the floor and ask the question verbally. So, either of those options are available to you.

 

With that, thank you for being with us today. Casey, the floor is yours.

 

Casey Mattox:  Great. Thank you. So, some of the most interesting [inaudible 01:38] cases -- it was one case earlier this year from the Supreme Court, the Mahanoythe cheerleadercase, and others are coming from the educational context. And this decision in InterVarsity Christian Fellowship USA v. University of Iowa is one of those. It has potentially significant implications for campus speech and association and for the doctrine of qualified immunity more broadly.

 

So, I’ll give you a bit of the factual background. Student groups form on university campuses. These are associations of students that come together around shared interests. They include everything from singing groups, social groups like fraternities and sororities, religious and political groups, language, ethnic groups, sports groups, really kind of runs the gamut. And universities typically have a system for registering or recognizing those groups and giving them official access to meeting space, channels of communication with other students, and other benefits that typically come with registered status at the university. And large universities today may have several hundred such groups on their campuses.

At Iowa, as at other schools, those groups have to comply with certain campus rules, and that includes the university’s policy on human rights. They often must -- at Iowa, they must also include similar language to the human rights policy in their constitutions. That policy provides that, in no aspect of the university’s programs—and I’ll come back to that point in just a moment—shall there be differences in the treatment of persons because of race, creed, color, religion, national origin, age, sex, pregnancy, disability, genetic information, status as a US veteran, service in the US military, sexual orientation, gender identity, associational preferences, or any other classification that deprives a person of consideration as an individual and that equal opportunity and access to facilities shall be available to all. It’s a mouthful.

 

Now, there’s an interesting philosophical question about whether student organizations, going back to the very beginning of that policy, really should be treated as university programs for purposes of these policies. I would argue that, to a large degree, they should not -- that these are associations of students that are, sort of, naturally occurring and should not be treated as an actual program of the university. I think there are problems with that approach. But that’s sort of beside the point for today’s discussion.

 

The RSO policy also says that membership and engagement in student organizations must be open to all students without regard to race, creed, color, religion, national origin, age, sex unless the organization is exempt under Title IXthat will be important later; that’s an exemption that’s more recent—sexual orientation, gender identity, or any other classification that deprives a person of consideration as an individual. But noting the importance of students’ ability to organize and associate with like-minded students—it’s a quote from the policy—the RSO policy also allows -- all registered student organizations are able to exercise free choice of members on the basis of their merits as individuals without restriction in accordance with the human rights policy. Therefore, any individual who subscribes to the goals and beliefs of a student organization may participate in and become a member of the organization.

 

The university permits RSOs to base membership and leadership on specific traits protected under the human rights policy. For example, there are, of course, sports clubs, Greek organizationsthey are very often male and femalethere’s an acapella group called the Hawkapellas that’s limited to women. Some groups prefer or require membership in a racial group according to their constitutions. Others require members to be US military veterans or subscribe to a certain ideological viewpoint or mission. And religious student groups have also been exempted, historically, at the University of Iowa, at least in important respects.

 

In 2003, Iowa allowed the Christian Legal Society to require its members to sign a statement of faith affirming Christian beliefs. And indeed, over the last two decades, CLS alone has been involved in multiple situations where one or more of those students -- one or more students challenged its continued status because of those faith standards. In 2008 and 2009, its general counsel even responded to CLS stating that CLS not only could continue to hold its faith requirements under the human rights policy, but that if Iowa denied it the freedom to do so, that that would discriminate against CLS on the basis of religion in violation of the human rights policy. And he also communicated to officials that they would lack qualified immunity if they impact sanctioned CLS.

 

Full disclosure, I was involved in several of these issues for CLS at the University of Iowa and even later in the BLinC case, as a matter of fact that we’ll talk about it in a moment, as well as the CLS v. Martinez case that you’ll also hear mentioned here, as well.

 

Iowa also approved the constitutions of other religious groups like the Imam Mahdi Organization, which requires to leaders to refrain from major sins—that’s a quote—and requires both leaders and voting members to “be Muslim Shia.” In 2017, the university moved to derecognize a group called Business Leaders in Christ—or BLinC as it refers to itself—when the group did not extend a freshman bible study leader position to a student who didn't affirm the group’s views on biblical teaching on homosexuality. He alleged that it was about his sexual orientation. They alleged it was about his religious beliefs and convictions on homosexuality. So there’s some dispute in the way that it’s framed.

 

BLinC sued, alleging that the school had selectively applied the policy against it and won a preliminary injunction in the district court. Among others, BLinC pointed to a group called Love Works that was, in fact, created by the exact same student that had raised the issue for BLinC. That was a student group he then created after not getting a position within BLinC that would require its leaders to affirm same-sex relationships, or at least refer to, I think, in their documents as a gay-affirming statement of faith. So, that’s the same student. The university approved Love Works’s constitution, saying it was compliant with the human rights policy but BLinC’s similar, but opposite, requirement was not.

 

In response to the preliminary injunction from the district court in that case, the university began what it called a “student org cleanup proposal.” It began reviewing all the RSO constitutions to bring them into compliance with the human rights policy. They pulled in various reviewers who were told to “look at religious student groups first” for language that required leaders to affirm certain religious beliefs. It also expressly exempted both fraternities and sororities from the policy. That’s the Title IX language I mentioned earlier. That language was inserted, at this point, in the policy to exempt fraternities and sororities from the ban on sex discrimination. Ultimately, the school, in response to that preliminary injunction in BLinC, deregistered 38 groups, mostly for failure to update their documents, but some for requiring their leaders to affirm statements of faith.

 

And one of those was InterVarsity. So, InterVarsity sued, at that point, school officials, in both their official and individual capacities, alleged that it had lost members and had been forced to extend resources in fighting against this derecognition. So, it sought a permanent injunction against this derecognition and damages. District court granted summary judgment to InterVarsity on its speech association and free exercise claims and denied the defendant’s qualified immunity defense holding that it was clearly established that the defendants could not discriminate on the basis of viewpoint and that that had occurred here. On appeal, the university defendants argued that even if they violated InterVarsity’s first amendment rights, those rights were not clearly established.

 

So, the Eighth Circuit’s opinion begins by saying that the free speech and free association claims blend into one, citing CLS v. Martinez. The idea is that because when you’re bringing a free association claim in the context of a limited public forum -- that you look at the limited -- the question is, basically, in a limited public forum is the restrictionin this case, a requirement that you not exercise the freedom of association and exclude people who don’t share your viewsis that a reasonable restriction? And so -- that’s the only question we need to ask. Is it reasonable and is it viewpoint-neutral? And you don’t take those two separate claimsan association claim and a free-speech claimin that context.

 

That’s an accurate reading, I think, of Martinez, but I think it’s deeply flawed, in my view, as a matter of constitutional interpretation. It effectively means that, as in Martinez, it’s permissible for government to require a complete waiver of free association rights in order to access a limited public forum, but it’s not permissible for the government to discriminate on the basis of viewpoint in accessing that forum. So it sort of vaults viewpoint over complete waiver of other rights as the relevant constitutional question. Neither Martinez or, in my view, the Eighth Circuit—although understandably given Martinez -- it’s where it was stuck—grapple with why association would be treated as second class to viewpoint or why government would have more power to condition access to a speech forum than it would other government benefits.

 

But in this case, those issues aren’t determinative. Martinez had been a case involving an all-comers policy, one that the Court deemed to require every student group to accept everyone as members and leaders. And as the Eighth Circuit explained, viewpoint discrimination is verboten in a limited public forum for student groups. Widmar, Rosenberger, and other decisions, including decisions from the Eighth Circuit, had made that clear. So, the government has to restrain itself from regulating speech when the perspective of the regulated group is actually the rationale for the regulation, and the Eighth Circuit held that that’s, in fact, what Iowa had done to InterVarsity.

 

For decades, the university had permitted RSOs to base their membership and leadership on religious affirmations or other traits that were protected by the human rights policy. They did this for religious groups, CLS, the Muslim group I mentioned before, secular groups, fraternities, sororities, a number of ideological groups, and for groups that -- even limited on the basis of racial minority status. In fact, the university still permits this, but not for InterVarsity. Indeed, when the district court had held that the university likely violated BLinC’s First Amendment rights because of its discriminatory application of the policy, instead of stopping the discrimination against BLinC, the university discriminated against more groupsremoved more groups from the forumand then, again, created a new express exception from its policy and derecognized InterVarsity in that process.

 

So, the Eighth Circuit pointed to Iowa’s decision that Love Works, which I mentioned before, had this gay-affirming statement of faith and that that was compliant with its human rights policy, while InterVarsity’s statement of faith was not. The Eighth Circuit said, “We are hard-pressed to find a clearer example of viewpoint discrimination.” You don’t want that if you’re a litigant in court. As the court explained, “This suggests a preference for certain viewpoints, like those of Love Works over InterVarsity’s.” The court said, “The University focused its cleanup on specific religious groups and then selectively applied the human rights policy against them. Other groups were simply glossed over or ignored.”

 

Citing Fulton, the Eighth Circuit held that strict scrutiny applied to a policy like this. The university didn't attempt to defend its -- and noted that the university didn't attempt to really defend its actions as surviving strict scrutiny. The court said, “This is wise.” The Eighth Circuit said that Iowa had a compelling interest in prohibiting discrimination, but it served that compelling interest by picking and choosing what kind of discrimination was okay. Basically, some RSOs at the University of Iowa could discriminate in selecting their leaders and members, but others, mostly religious groups, were not permitted to do so. If the university really wanted a campus free of discrimination, as it claimed, it could have adopted an all-comers policy, like that in Martinez, or the court said it could’ve exempted religious student groups, the same way it did for fraternities and sororities, but it had not.

 

So, the court held that the rights were, in fact, violated. Now, the question of qualified immunity -- the university would treat this case as a conflict between the first amendment and nondiscriminationso, with that level of generalitypointing to CLS v. Martinez and a variety of contemporary casesMaster Cakeshop, Fulton case, and otherswhere these questions are playing out. InterVarsity treats this as a viewpoint discrimination question and just points to the volumes of decisions that affirm that viewpoint discrimination by government officials is not okay.

 

In denying qualified immunity, the district court had pointed to its prior BLinC decision, saying that “the court would never have expected the university to respond to that order by honing in on religious groups’ compliance with the policy while at the same time carving out explicit exemptions for other groups, but here we are.” The Eighth Circuit looks at this and says, well, the district court erred in treating its own prior decision as establishing the law that Iowa officials should have known they had to follow. “While we share the district court’s frustration with the university’s conduct, we do not consider the BLinC preliminary injunction from the district court as precedent that clearly established the individual defendant’s conduct was unconstitutional.” And then, “a decision of Federal District Court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”

 

I find that quite remarkable that, for qualified immunity purposes, you have to find a binding appellate court decision on point. And it’s difficult to justify that holding in my view, but there’s -- I think there is, as the court points to -- that there is Supreme Court precedent for that, what I would think of as, kind of, cribbed, limited view of qualified immunity. But based on the Eighth Circuit’s decision in BLinC and other circuits’ decisions from the Sixth and Seventh, as well as implications from Martinez itself, the court upholds the decision to deny qualified immunity, finding that the right to be free of viewpoint discrimination in this context is clearly established. It then concludes by noting that the policy justifications often asserted for qualified immunitythe need for breathing room to make difficult decisions. But then it points to Justice Thomas’s dissent from denial of certiorari in Hoggard v. Rhodes, also an Eighth Circuit decision that the Supreme Court just denied cert on a few weeks ago.

 

And I’ll just quote this last paragraph of the opinion and then offer a few more thoughts and open for questions. The Eighth Circuit concludes this way, “But as Justice Thomas asked in Hoggard v. Rhodes, why should university officers, who have time to make calculated choices about enacting or enforcing university policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting? What the university did here was clearly unconstitutional. It targeted religious groups for different 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 that they were violating the law. Either way, qualified immunity provides no safe haven.”

 

So, a few observations, then I’ll open the floor for questions. I think this is a significant decision for campus speech and association for a few reasons. One is simply the qualified immunity holding and the implications that has for speech and association. I’ll mention that again specifically here -- the incentive shifting that happens when government officials are told you need to get this right. There’s a reason why you need to get this right rather than, sort of, being within the veil of protection; that it actually matters that you are focused on figuring out what the constitutional rights at issue are and avoiding violating constitutional rights. I think that’s significant and may have implications for some of these similar issues playing out in courts below or on campuses.

 

The treatment of express and practical exemptions as creating viewpoint discrimination, especially the exemption for fraternities and sororities, very often will -- I’ll see other examples like this where universities try to act like the Title IX exemption is somehow imposed upon them -- that they’ll have their own school nondiscrimination policy. And frankly, they want to exempt fraternities and sororities from the sex nondiscrimination provision. They would like to not exempt other groups. And so they end up treating the fact that fraternities and sororities are exempt under Title IX, meaning that the university is not responsible for violating Title IX by allowing them to exist. And they’ll treat that as essentially requiring the university to exempt them from the university’s own nondiscrimination policy, which doesn’t work. And this is an example of a court calling that out and saying, “You are choosing to exempt fraternities and sororities under your own policies. You’re not required to do that under Title IX.” And that choice has implications.

 

So, it puts the universities on notice that there’s simply no easy way to fix -- fit yourself into the Martinez holding. It’s all or nothing. That further cabins Martinez and confirms what practical reality is basically showing us. It’s effectively dead letter. In my opinion, the opinion’s inconsistent with the Court’s precedents before and after, and it needs to be overturned. But in any case, it means virtually nothing if it’s limited to that unrepeatable context.

 

Martinez came up at UC Hastings College of Law, which is a law school unto itself with no other university concerns about the typical single-sex student organizations and other student groups that create challenges for universities that try to fit themselves into the Martinez holding. The Court itself has basically ignored Martinez since it was decided. You have case after case where Martinez would be quite relevant and the Court just ignores it on both sides, which I think, again, seems to further indicate that the Court realizes that there’s something wrong with the analysis in Martinez.

 

Number two, Fulton has meaning. You can see the spirit of Fulton in this decision. There’s a lot of debate about whether or not Fulton -- how much impact Fulton will have. The exemptions here were damning. And when government has to impose a mandate and just not make exemptions, that’s easier said than done. And I think you see the challenges of just not making exemptions from a policy that you generally want to have in this case.

 

On qualified immunity, this opinion is a bit of a mixed bag. On one hand, university officials are denied qualified immunity. Several recent decisions have done so and that may begin to change behaviors from university officials on campus. And at the very least, university council should be taking note of this incentive to get the law right and to protect employees and indemnifiers from liability if they don’t. So, it should be an incentive shift. We’ll see if that really plays out.

 

Along with Justice Thomas’s descent from the denial in Hoggard, it may show a path forward for those opposed to qualified immunity, generally, addressing its application outside the policing context where the policy objections that are often made about getting rid of qualified immunity, generally, are just not present. They are very few split-second decisions that are university administrator needs to make about whether or not to register a student group, to permit a student speaker. It would be extraordinarily rare that someone in a student affairs office couldn't pick up the phone and call the general counsel’s office and have them walk them through the constitutional question. That, obviously, is not always the case. With police -- it would be very rare for that to be the case with police. And so I think there are some serious policy -- the policy justifications, perhaps, that may more often be present -- arguments could be present in the police context are just not present on campus.

 

On the other hand, the treatment of the district court’s own recent prior decision on the same issue as being insufficient itself to place the same officialssame officialson notice really raises questions, to me, about the doctrine. Imagine if the district court’s decision here was that police officers can’t do X. And you know that the police officers read that opinion because -- in the next case because they were the ones in the first case. You know they read the opinion, and they still went out the next day and did exactly the same thing, and you come back to the same district court judge, and the district court judge saying, “I’ve already told you you’re not permitted to do this.” And that’s insufficient for qualified immunity? That seems, to me, to undermine the very justifications for the doctrine in the first place -- of making sure that officials are put on notice.

 

So, I will stop there. And hopefully, we will have some good questions. I will check those now. Alright. We have from Jordan Lawrence. “In CLS v. Martinez, have many state universities adopted all-comers policies or do most still have policies barring specific categories of discrimination like race?”

 

The answer is, basically, that some universities have attempted to adopt all-comers policies and they have failed to adopt all-comers policies. I’m not aware, actually, of another university that has been able to create an all-comers policy for the reasons that I mentioned. Right? If you – in CLS v. Martinez, you’re looking at sort of a law school unto itself. So you don’t have fraternities, you don’t have sororities, you don’t have single-sex sports teams, you didn't have singing groups. All of those things are, basically, going to be present on virtually every other university campus in the country. And you’ve got to figure out, how do we deal with these?

 

And once you start making exceptions in the fraternities and sororities context -- when you say, “Well, we prohibit sex discrimination but it’s not quite the same when it’s sex discrimination by Tri Delta,” well, that may be true. But, then, you have to justify, well, why is -- you also prohibit religious discrimination. Why isn’t it not quite the same when it’s a Muslim student group or a Jewish student group or a Christian student group who’s saying we want to have leaders who share our beliefs? Why is that not a similar justification for an exemption? Universities have tried. They’ve tried to make the argument that these are all-comers policies and they failed, so far, to date in making their argument.

 

“Will the decision be appealed to the Supreme Court? And what if this was in the Ninth Circuit?” Good question. So, on the Supreme Court question -- I mean, the first answer I saw from the University of Iowa on this was that they would abide by the Eighth Circuit’s decision. Given the, sort of, tepid attempt they made at the Eighth Circuit to try to justify their actions, I think it would probably be -- I would be surprised if they appealed, especially given that comment that essentially said, “We’ll abide by the decision.” I think it’s hard to go from that to seeking cert. I guess, they still could, but it sounds like this is probably going to end.

 

If this was the Ninth Circuit -- there was another case, Alpha Delta Chi v. Reed, where the Ninth Circuit basically treated a more typical nondiscrimination rule as effectively -- kind of, close enough to a nondiscrimination -- more typical nondiscrimination rule. That’s been a while. A lot of decisions have come since. So I think, in that sense, there is a bit of a conflict here between circuits. So, I don’t know. I don’t know if the Ninth Circuit would relook at that question in light of Fulton and some of these other decisions that have come since and reevaluate that. But I think as it presently stands, at least on some level of generality, there’s a conflict between the Ninth and, at least, the Sixth, Seventh, and Eighth on this question.

 

“Can this analysis extend to support a solution to the difficult question of Section 230? In other words, a social media company could establish an all-comers policy and be immune from liability, or it can pick and choose but, when it comes to publisher, and therefore are responsible for its choices.” I mean, I think the challenge there is still, ultimately, going to be the state action doctrine problem. And there’s obviously some similarity in the conversation. But I think, ultimately, you’re still left with a state action doctrine problem that takes -- platforms are still privately owned platformsthey’re not government platformsand that’s going to be the big challenge to making an argument like it. You can sort of CF an argument like it, but I think it would be difficult to really, sort of, translate it into that argument.

 

Alright. Let’s open it up and see if we have other questionsverbal questions. And I’ll continue to watch here if there are others that are dropped into the chat, as well. So, I think you can raise your hand if you’re interested in a question. And while we wait, I see we have one other person here that asks, “Not a university-related question, but why did the Supreme Court issue on a statement on the Washington florist case, the Barronelle Stutzman’s case, Arlene’s Flowers?” It was already adjudicated with the Colorado cake case. So, this is the cert denial a few weeks ago in Arlene’s Flowers. It’s a good question. I think a lot of people have raised that and been surprised by the lack of a statement. It could be a vehicle question. It could be doubts about whether or not sending it back to the Washington Supreme Court was going to be actually effective given where the court was.

 

My understanding, I think, is that ADF actually had a line in the reply brief, I think, on cert that seem to indicate it didn't think that it would be particularly helpful to send the case back. And that may be true that there’s not a significant enough change in the law that -- basically, that she have won under existing law and that it’s not going to necessarily change things if you send it back. And my guess is that it’s most likely a vehicle question, and I will be surprised if another case like it doesn’t get to the Supreme Court. I think they’re looking for what the right case is to address that question. That’s rank speculation on my part. Anyone else, either by the chat or if you raise your hand, you can just ask the question verbally. Give people a break from my voice.

 

Evelyn Hildebrand:  If we don’t have any [inaudible 30:49] -- oh, here we go. Here’s a question. Great. I think --.

 

Mary Ann McGrail:  Mary Ann McGrail, attorney in Washington. Could you talk a little more about how Rosenberger figured into this case?

 

Casey Mattox:  Sure. Rosenberger is the decision that just made very clear that viewpoint discrimination against religious student groups is prohibited. So, Rosenberger is the ’95 case—decided just to date myself -- when I was at UVA in the middle of time there—that had held that exclusion of religious student groups from the registered student organization forum for seeking student activity fee funding on the basis of its religious viewpoint was impermissible. And so the application of that case here is, basically, that this is also a forum for student organizations, registered student organizationssame type of forumand that the group is being excluded here on the basis of its viewpoints.

 

The classic example of that, I think, here was the fact that you have the same student who had been involved in the BLinC group creates a different student groupreligious student groupwith the opposite faith commitment in support of same-sex marriage or in support of homosexuality, that student’s group is approved, and the one that he had left was not approved. And so that viewpoint discrimination is foreclosed by Rosenberger.

 

Mary Ann McGrail:  Thank you.

 

Casey Mattox:  Sure.

 

Evelyn Hildebrand:  I think there’s one --

 

Casey Mattox: All right.

 

Evelyn Hildebrand: -- more question in the queue. Then, maybe if you’d like to make some closing comments in the event we don’t have --.

 

Casey Mattox:  Sure. The question about the Iowa -- it’s Hawkapella, I think, is the name of the group. Yeah. I think that’s one of the -- frankly, one of the more challenging pieces for universities in applying these policies is that, very often, you have male and female singing groups. They’ll often have arguments for why -- the Title IX argument for -- which, I think, again, is just sort of waving your hand at it. It doesn’t hold up to any analysis, as the Eighth Circuit pointed out. But you’ll have arguments that, “Well, but fraternities and sororities are different.” Same-sex sport teams -- you can also, sort of, point to other kinds of exemptions at the federal level and pretend as if those actually mandate those exemptions at the university when they don’t.

 

Singing groups are a whole other thing. And a lot of universities, especially, kind of, East Coast universities, have 100-year-old single-sex singing groups. When I was at UVA, the single-sex singing groups would be -- the admissions office took them out on the road with them. Right? They would use -- Virginia Gentlemen would go to schools as an example of, kind of, the culture at UVA and entertain prospective students. And then you have the university being forced in the position, “Well, are we going to permit this sort of sex discrimination happening with these groups. Do we treat that as a different thing from sex discrimination, the exclusion of women from the chess club, for example?”

 

And I think, intuitively, people realize that these are different things, that there are both single-sex choruses, there are single-sex acapella groupsthose are different things. But I think that’s going to be a big challenge for schools going forward when they attempt to apply policies like this. How do they deal with that question?

 

Although, maybe the answer—and this is maybe, kind of, going into my wrapping-up thoughts here—I think this is yet another court of appeals now -- sort of closing the door on universities trying to have the cheap, easy way around these issues by trying to stretch CLS v. Martinez into a context that it doesn’t stand for and trying to take the all-comers policy and, basically, wrap that around any of their more typical nondiscrimination rules. And so I think after this decision it’s going to be difficult for schools to continue to make that argument, certainly in the Sixth, Seventh, and Eighth. And I think other circuits will be taking note of this kind of growing chorus of requiring schools that, if you’re going to have an all-comers policy, it truly has to be an all-comers policy.

 

Like I said before, I think, ultimately, the sort of bear holding in Martinez that I think is really troubling, even outside this context, that the Court’s going to need to reconsider is the idea that you can flake free speech and association claims into one. I don’t see any reason why you would do that and not also conflate any other First Amendment claims into the speech forum context. And if you do that, then, essentially, you’re basically saying that the forum doctrine, sort of, swallows all -- or even other constitutional claims, right -- that you can be required to wave constitutional rights in toto in order to access a university speech forum or a government speech forum generally.

 

I think that’s inconsistent in multiple ways with the way that First Amendment law has worked. And so I think they’re ultimately going to have to face that. But for the time being, CLS v. Martinez is, essentially, sort of, sidelined and doesn’t seem to have any real legs.

 

So, I will wrap it up there. You can find me on Twitter if you’re interested. And thanks for joining.

 

Evelyn Hildebrand: Wonderful. Thanks so much. On behalf of The Federalist Society, I want to thank our expert, Mr. Casey Mattox, for joining us today and sharing his remarks with us. If you have any feedback, please send that feedback to info@fed-soc.org. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.