No shield for religious discrimination

A federal appeals court recently gave universities a fresh incentive to avoid unconstitutional policies. The 8th U.S. Circuit Court of Appeals ruled that University of Iowa administrators could face personal responsibility for damages after denying recognition to a Christian student group.

The school officials stripped Business Leaders in Christ (BLinC) of group recognition in October 2017 after it declined to allow a practicing gay student to serve as a leader. The court rejected the administrators’ argument that qualified immunity—a judicial doctrine shielding public officials when constitutional rights are not clear—protected them from personal liability for the First Amendment violation. All three panel judges agreed school administrators should have understood BLinC’s free speech rights.

Circuit Judge Jonathan Kobes, a Trump appointee, also called out school officials for violating the student group’s right to freely exercise its religion. “The individual defendants may pick their poison: They are either plainly incompetent or they knowingly violated the Constitution,” he said. “Either way, they should not get qualified immunity.”

BLinC’s loss of university registration meant it could no longer access student activity funds and use school facilities and media. Other student groups that limited leadership to a certain sex or ideology were unaffected.

A federal judge in 2019 ruled the school violated BLinC’s First Amendment rights. The university did not contest that finding, but appealed the part of the decision holding officials personally liable.

InterVarsity won similar victories against the University of Iowa and Michigan’s Wayne State University in 2019. The 8th Circuit is expected to release a decision in the Wayne State case this spring. In the meantime, a federal judge temporarily ordered the reinstatement of InterVarsity’s campus recognition.

Becket counsel Eric Baxter, who represented BLinC, said the case heads back for the district court to determine damages, though the university could ask the full appeals court to reconsider the case or appeal to the Supreme Court.

The University of Iowa could adopt an “all-comers” policy, opening all student organizations to anyone. But Baxter said that is unlikely: It would end fraternities, sororities, and all-female singing and dance groups. The Supreme Court in 2010 upheld an “all-comers” policy at San Francisco’s Hastings College of Law, and the University of California system implemented it statewide in 2014. But the policy hasn’t proved widely popular elsewhere.

Baxter said the church autonomy doctrine—a First Amendment doctrine that shields religious institutions from government dictates about how to practice their religion—should protect student faith groups even under an “all-comers” policy. In BLinC’s case, the appeals court declined to address the doctrine. “It’s deeply ironic that school officials tried using the university’s nondiscrimination policy to discriminate against religion,” he said.