A Christian group at the University of Iowa scored a major win this week before the United States Court of Appeals for the Eighth Circuit.  In an opinion (below) with sweeping potential impact, the court reversed District Court Judge Stephanie Rose and ruled that University of Iowa officials can be held personally liable for targeting a Christian club and denying the rights of free speech and association. The University ultimately did not appeal findings that it violated the rights of this religious group and these students in its discriminatory application of university policies.

At issue is the disparate treatment shown a religious group, Business Leaders in Christ or BLinC. The University of Iowa registers student organizations under its “Registration of Student Organizations” (RSO) policy. The policy requires compliance with federal, state, and university rules. That does not include an “all-comers” rule (mandating acceptance of any and all interested students) but does include the University’s Human Rights Policy. That policy states, in relevant part:

 The University of Iowa brings together in common pursuit of its educational goals persons of many nations, races, and creeds. The University is guided by the precepts that in no aspect of its programs 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 U.S. veteran, service in the U.S. military, sexual orientation, gender identity, associational preferences, or any other classification that deprives the person of consideration as an individual, and that equal opportunity and access to facilities shall be available to all.

It also contains a nondiscrimination clause:

Membership and participation in the organization must be open to all students without regard to race, creed, color, religion, national origin, age, sex, pregnancy, disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation, gender identity, associational preferences, or any other classification that deprives the person of consideration as an individual. The organization will guarantee that equal opportunity and equal access to membership, programming, facilities, and benefits shall be open to all persons.

However, this clause has been applied differently depending on the group. The Eighth Circuit noted that at least six RSOs expressly limit access to leadership or membership based on race, creed, color, religion, sex, and other characteristics that the Human Rights Policy protects. This includes Love Works which requires leaders to sign a “gay-affirming statement of Christian faith.”  Likewise, the House of Lorde holds membership “interview[s]” to maintain “a space for Black Queer individuals and/or the support thereof” and the Chinese Students and Scholars Association limits membership to “enrolled Chinese Students and Scholars.”

When it registered as an RSO, BLinC declared that it “was founded as a religious organization to help ‘seekers of Christ’ learn ‘how to continually keep Christ first in the fast-paced business world.’” BLinC’s officers lead their members in prayer and Bible discussion. Accordingly, the group leaders screen prospective officers “to ensure that they agree with and can represent the group’s religious beliefs.”

In March 2016, Marcus Miller, a BLinC member, asked the then group president about becoming an officer for the next school year. In later discussions, Miller revealed that he was gay and, according to the court, “told Thompson that he had been struggling with the Bible’s teachings on that topic.” After internal debate, the group decided that Miller should not lead the group as an officer in religious talks because of a fundamental disagreement with their biblical beliefs.

On February 20, 2017, Miller filed a discrimination complaint with the University and demanded that the University “[e]ither force BLinC to comply with the non-discrimination policy (allow openly LGTBQ members to be leaders) or take away their status of being a student organization.”

Meetings were held with University Compliance Coordinator Constance Schriver Cervantes and then-Associate Dean of Students Thomas Baker. Cervantes put forward a distinction in rejecting the group’s claim that it was blocking Miller due to his opposition to the group’s religious beliefs:

This included discussion of the “difference between discriminating on the basis of ‘status’ and choosing leaders based on ‘beliefs’ and ‘conduct.’”  Both Cervantes and Baker are lawyers. … Dr. Nelson and Dean Baker agreed that a student group could require its leaders to abstain from sexual relationships outside of marriage—or abstain only from same-sex sexual relationships—if the requirement “was applicable to all.” Dr. Nelson later testified that BLinC would not have violated the Human Rights Policy if it had denied Miller a leadership position based on his disagreement with BLinC’s “religious philosophy” instead of his status as a gay man.

The University demanded that BLinC rewrite its Constitution to be clear about its principles and expectations for officers and members.  The group did so that approved a Statement of Faith under the heading “Doctrine of Personal Integrity,” providing:

We believe God’s intention for a sexual relationship is to be between a husband and a wife in the lifelong covenant of marriage. Every other sexual relationship beyond this is outside of God’s design and is not in keeping with God’s original plan for humanity. We believe that every person should embrace, not reject, their God-given sex. Id.

It also clarified the process for being selected as an officer and the requirement that BLinC’s leaders “accept and seek to live BLinC’s religious beliefs.”

However, Nelson still rejected the group’s application, stating that the group failed to “comply with the University’s Human Right’s policy since its affirmation, as required by the Constitution for leadership positions, would have the effect of disqualifying certain individuals from leadership positions based on sexual orientation or gender identity, both of which are protected classifications.”

In a later decision affirming the denial, Dr. Lyn Redington, then-Assistant Vice President and Dean of Students agreed that the group was discriminatory even though the University later admitted that “a student could ‘publicly acknowledge’ or identify as being gay and still be [a] leader with BLinC so long as the student agreed with, and ‘agreed to live by, BLinC’s statement of faith.’” However, the University objected that “the ‘openly gay’ individual would have to regard his or her innate attraction to members of the same sex as ‘sinful’ in order to participate as a member of BLinC’s leadership team.”

District Court Judge Stephanie Rose ruled in favor of the group in finding that the University of Iowa did violate BLinC’s First Amendment rights to free speech, expressive association, and free exercise through their disparate application of the University’s Human Rights Policy.  The University did not appeal those findings. However, Rose also ruled that these officials could not be sued personally under immunity protections.  She was reversed as to the speech and association claims by the appellate court.

In his concurring opinion that these officials (including those like Cervantes who remains in the same position) can be personally sued, Judge Jonathan Kobes also dissented in part on the decision not top extend the ruling to the free exercise claims. He then delivered this haymaker:

The law is clear: state organizations may not target religious groups for differential treatment or withhold an otherwise available benefit solely because they are religious. That is what happened here. The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.

The decision could have profound impacts on universities.  There is a common complaint that officials will run unpopular groups through endless hearings or procedures to discourage them from seeking official recognition or appealing decisions. There is also a common complaint that religious or conservative groups are treated differently in such controversies.

There is no cost to the officials as individuals in taking such actions. However, the Eighth Circuit is saying that they can be personally liable in taking such actions.  Such liability is unlikely absent the violation of established policies or rules.

The Eighth Circuit ruled that these officials ignored clear and established law in taking this discriminatory action:

The rule from Lukumi and Fraternal Order clearly establishes that granting secular but not religious exemptions from a neutral policy violates the Free Exercise Clause. But if those cases were not enough, the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer puts the question beyond debate. 137 S. Ct. 2012 (2017). Missouri offered grants to qualifying organizations to resurface playgrounds. Id. at 2017. Trinity Lutheran operated a religious preschool and applied for a grant but was turned away because the Missouri Constitution prohibited the state from giving money to religious institutions. Id. at 2017–18. The Court held that when the State denies an otherwise generally available benefit “solely on account of religious identity” without satisfying strict scrutiny, it violates the Free Exercise Clause. Id. at 2019.

The ruling now creates a personal cost to the use of university authority to discriminate against groups like BLinC.

It is not clear if the University will appeal. University officials and legal counsel cost the university dearly in forcing this controversial into litigation. Now they must decide whether to double down — a decision that other universities may strongly discourage.

The case is not ideal as a test case for the Supreme Court given the unappealed ruling that the University of Iowa did violate the Constitution in discriminatory against the group. Thus, these officials are arguing that, despite such clear discrimination and the violation of controlling case law of the Supreme Court, they should not be personally liable for such unconstitutional conduct.  There would likely be some justices inclined to support the university but a loss before the Supreme Court would make this is national precedent — something other universities will not relish.

Even as it stands, the ruling is a considerable victory for this group and its counsel, Eric S. Baxter and Daniel H. Blomberg of The Becket Fund for Religious Liberty as well as Christopher C. Hagenow and William R. Gustoff  of Hagenow & Gustoff, LLP.

Here is the opinion: BLinC v. University of Iowa