The College Fix

‘I can’t get around the blatantly discriminatory treatment’

The University of Iowa allowed a Christian student group that supports same-sex romantic relationships to limit its leadership to students who agree with that stance.

It refused to extend the same leeway to a Christian student group that opposes same-sex romantic relationships, and derecognized it.

The taxpayer-funded institution tried to explain away this disparate treatment, with limited success, during oral argument before the 8th U.S. Circuit Court of Appeals last week.

Represented by religious liberty firm Becket, InterVarsity Graduate Christian Fellowship is trying to hold university officials personally liable for their behavior, which was recognized as unconstitutional by a trial court.

But the student group’s lawyer faced some skepticism from the three-judge panel on whether the unconstitutionality of the behavior was “clearly established” at the time – the hurdle for overcoming the “qualified immunity” of government officials.

It’s the second qualified-immunity case to come before the 8th Circuit in less than four months, both involving the University of Iowa’s derecognition of student groups for requiring leaders to affirm that sex is reserved for heterosexual marriage.

In the earlier case, brought by Business Leaders in Christ, Iowa Solicitor General Jeffrey Thomspon argued why U.S. District Judge Stephanie Rose’s approval of qualified immunity for university officials should remain.

MORE: Not University of Iowa’s first rodeo before 8th Circuit

Last week, he sought to overturn Rose’s denial of qualified immunity, which stemmed from the derecognition of dozens of religious student groups, including InterVarsity, in response to the judge’s ruling in favor of BLinC.

Thompson claimed the university made “good faith efforts” to comply with Rose’s ruling that found it selectively enforced its “human rights policy” against BLinC compared to other student groups, even religious groups.

It also granted broad exemptions from the nondiscrimination policy for much larger groups, particularly Greek life and sports clubs, as well as for racial minorities so they could have a “safe space.”

The state’s lawyer hit a wall with Judge James Loken, however. Good-faith effort or not, “I can’t get around the blatantly discriminatory treatment of InterVarsity versus Love Works, by the same people,” the judge said, referring to the pro-gay Christian student group.

Judge Jonathan Kobes noted he also served on the panel that considered the BLinC appeal, which has yet to issue a ruling. He asked Becket lawyer Daniel Blomberg if the outcome of the first case “arguably dictate[s] the result” of the second.

Even if the panel rules against BLinC, the lawyer responded, InterVarsity should still overcome qualified immunity in the current case, given the “much more express” discrimination it faced.

Judge Rose issued two injunctions against the university, and “no reasonable official can read those injunctions” and conclude they have license to derecognize InterVarsity for its leadership criteria, Blomberg said.

What if university enforced viewpoint-neutral policy in racist way?

As he did in the BLinC appeal, Thompson emphasized that Rose said the university’s nondiscrimination policy was “facially constitutional” but not “consistently and equally applied” to student groups. The judge “expressly contemplated” the enforcement would change.

How the issue is framed “may even be case dispositive,” determining the ruling, a judge said. (The members of the panel, which included Judge Steven Grasz, rarely identified themselves when speaking on the teleconference. Courthouse News Service correlated some of the quotes with individual judges.)

The judge questioned Thompson’s characterization that the university’s dilemma was enforcing its policy, based on Iowa civil rights law, or honoring students’ beliefs. The facts of the case “don’t seem to line up with that characterization.”

The problem is that the university wasn’t enforcing a viewpoint-neutral policy in a nondiscriminatory manner, the judge continued. Thompson insisted that “begs the question” on qualified immunity, because the “limited public forum analysis” that Judge Rose used “has never really been applied directly” to this factual scenario.

What if the university applied a viewpoint-neutral policy in a “blatant racial[ly] discriminatory manner?” a judge asked. Wouldn’t that overcome qualified immunity? “Forget subjective intent,” the judge emphasized, and stick with whether the discrimination was objective: “How does your argument save the day?”

MORE: Judge tells U. Iowa it can’t treat Christian, Muslim groups differently

Thompson said the university responded to Rose’s injunction by identifying hundreds of registered student organizations covered by its human rights policy. “Starting with the religious organizations,” a judge noted, implying this was discriminatory: Only religious groups were derecognized in the university’s initial review.

“They had to start somewhere,” Thompson replied, and BLinC explicitly argued that it was singled out relative to other religious groups with leadership tests.

Iowa’s brief repeatedly mentions InterVarsity’s beliefs, a judge noted, asking what relevance they have. Yet even InterVarsity says its religious beliefs are “intrinsically intertwined with status and conduct,” Thompson retorted: “There are certain beliefs,” such as on same-sex relationships, “that end up leading to actions that could violate the human rights policy.”

University policy also presents a problem for secular groups such as racial affinity clubs, however, a judge said, highlighting the exemptions the university made for them. Thompson complained that the university was trying to hit a “moving target” of aligning its policy with Rose’s analysis at the same time the Legislature was explicitly codifying the rights of student groups to choose leaders.

Judge Loken emphasized that Thompson kept misstating the facts of the case, especially Love Works’ leadership criteria. “They don’t accept anybody as a leader,” the judge said: “They don’t accept anybody who won’t sign on for their core beliefs.”

Thompson claimed “the record is unclear” on that point, however. Loken then suggested the court should punt on qualified immunity until it gets “a better fact record,” which may not happen until a trial has ended, but if Love Works was indeed authorized to discriminate, officials would lose qualified immunity.

Promotes organizations that discriminate on a vast scale

Blomberg barely got into his opening statement – that the university committed “deliberate, express viewpoint discrimination” in contrast to its good-faith characterization – when Judge Kobes asked for “clearly established” law on the subject.

The “only intervening legal authority” was Rose’s finding that the university’s mass derecognition of religious student groups violated her BLinC order, Kobes said: Can a district court “clearly establish law for purposes of qualified immunity in a previous case?” (Thompson later claimed Rose had to “fill in the blanks” between case law.)

Blomberg said the judge misread his clients’ position. The law was already clearly established – including from the Supreme Court’s 2010 ruling on “all-comers” university policies – but Rose certified that what the university did to InterVarsity was “beyond the pale.”

No one in the case disputes that pro-LGBTQ Love Works got “preferential treatment,” and the university admitted to Rose that Love Works is allowed to follow its beliefs in leadership criteria, the lawyer said.

The university’s own witness said political and ideological groups are allowed to discriminate based on their beliefs, but not religious student groups – even if they both hold the same views on an issue such as poverty alleviation, according to Blomberg. Beliefs “rooted in religion” are explicitly disfavored.

The university is trying to distract the court with a “background issue” – the difficulty of fairly enforcing a nondiscrimination policy – when the primary issue is its targeting of religious beliefs “while exempting dozens and dozens of other … student organizations and its own programs,” Blomberg said. For example, the university only wrote an explicit exemption for Greek organizations, covering both leadership and membership, after it enforced the nondiscrimination policy against InterVarsity.

MORE: Court holds U. Iowa officials liable for discrimination against Christians

In contrast, the university wouldn’t even let InterVarsity “strongly encourage” its applicants for leadership – just four positions – to believe in God.

Unlike the BLinC case, the university had “plenty of time” to consider InterVarsity’s requests, Blomberg said. Officials knew the case law and had “previously come to the right answer” with written policies, yet it created exemptions for groups it favored, such as Greek life.

“The university was touting access to a group that excluded thousands of individuals from accessing it,” he said, acknowledging yet waving off the much greater harm to equity caused by these popular student organizations.

The Supreme Court has repeatedly rejected government discrimination along the lines of the university’s, Blomberg said, from the Trinity Lutheran playground case to the Espinoza Montana school-choice case to New York’s discrimination against houses of worship in COVID-19 restrictions.

There’s no need to distinguish between a university and “ecclesiastical” setting, the lawyer told a judge who questioned the case law, because the university’s behavior was so “flagrant.” Asked if Blomberg’s argument meant the 2010 “all-comers” ruling itself violated the First Amendment’s religion clauses, he responded that the court needn’t address that.

Even Martinez, as that ruling was known, recognized that “leadership” in student groups “presents some kind of unique consideration,” Blomberg said. The panel can decide this case based on the free speech and free exercise clauses, where the case law is unambiguous, and issue an injunction against religious discrimination and award damages to InterVarsity.

MORE: Judge blocks U. Iowa from selective enforcement against InterVarsity

MORE: University officials denied ‘qualified immunity’ for pro-life discrimination

MORE: Iowa State officials knowingly violated First Amendment

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