Intervarsity Christian Fellowship/USA v. Univ. of Iowa

5 F.4th 855

INTERVARSITY CHRISTIAN FELLOWSHIP/USA; Intervarsity Graduate Christian Fellowship, Plaintiffs - Appellees

v.UNIVERSITY OF IOWA; Bruce Harreld, in his official capacity as President of the University of Iowa and in his individual capacity; Melissa S. Shivers, in her official capacity as Vice President for Student Life and in her individual capacity; William R. Nelson, in his official capacity as Associate Dean of Student Organizations and in his individual capacity; Andrew Kutcher, in his official capacity as Coordinator for Student Organization Development and in his individual capacity; Thomas R. Baker, in his official capacity as Student Misconduct and Title IX Investigator and in his individual capacity, Defendants - Appellants

Jewish Coalition for Religious Liberty, Amicus on Behalf of Appellee(s)

Asma T. Uddin, Amicus Curiae

State of Nebraska; State of Alabama ; State of Alaska ; State of Arizona; State of Arkansas; State of Indiana; State of Kentucky; State of Louisiana ; State of Mississippi; State of Missouri; State of Oklahoma; State of South Carolina; State of South Dakota; State of Texas ; State of Utah; The Navigators ; Campus Crusade for Christ, Inc. (Cru); Foundation for Individual Rights in Education; The Cardinal Newman Society; Ethics and Religious Liberty Commission of the Southern Baptist Convention ; The Lutheran Church-Missouri Synod; Religious Student Organizations; Christian Legal Society; Council for Christian Colleges & Universities, Amici on Behalf of Appellee(s)

No. 19-3389

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2021

Filed: July 16, 2021

Eric S. Baxter, Daniel H. Blomberg, BECKET FUND FOR RELIGIOUS LIBERTY, Washington, DC, William R. Gustoff, HAGENOW & GUSTOFF, Des Moines, IA, Christopher D. Hagenow, WHITAKER & HAGENOW, Des Moines, IA, for Plaintiffs - Appellees.

Jeffrey S. Thompson, ATTORNEY GENERAL'S OFFICE, Des Moines, IA, for Defendants - Appellants.

Parker Douglas, DOUGLAS LAW, PLLC, Holland, MI, for Amicus on Behalf of Appellee Jewish Coalition for Religious Liberty.

Brett J. Beattie, BEATTIE LAW FIRM, Des Moines, IA, Josh Dixon, GORDON & REES, Charleston, SC, for Amicus Curiae Asma T. Uddin.

James A. Campbell, ATTORNEY GENERAL'S OFFICE, Lincoln, NE, Amicus on Behalf of Appellees State of Nebraska, State of Alabama, State of Alaska, State of Arizona, State of Arkansas, State of Indiana, State of Kentucky, State of Louisiana, State of Mississippi, State of Missouri, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, and State of Utah.

Vince Eisinger, GIBSON & DUNN, New York, NY, Blaine H. Evanson, GIBSON & DUNN, Irvine, CA, for Amicus on Behalf of Appellees The Navigators and Campus Crusade for Christ, Inc. (Cru).

Michael J. Lockerby, FOLEY & LARDNER, Washington, DC, for Amicus on Behalf of Appellee Foundation for Individual Rights in Education.

Clyde Taylor, Sally R. Wagenmaker, WAGENMAKER & OBERLY, Chicago, IL, for Amicus on Behalf of Appellees The Cardinal Newman Society, Ethics and Religious Liberty Commission of the Southern Baptist Convention, and The Lutheran Church-Missouri Synod.

Travis C. Barham, David Andrew Cortman, ALLIANCE DEFENDING FREEDOM, Lawrenceville, GA, John J. Bursch, Kristen Waggoner, ALLIANCE DEFENDING FREEDOM, Washington, DC, Tyson C. Langhofer, Michael R. Ross, ALLIANCE DEFENDING FREEDOM, Ashburn, VA, for Amicus on Behalf of Appellee Religious Student Organizations.

Kimberlee Wood Colby, CHRISTIAN LEGAL SOCIETY, Springfield, VA, for Amicus on Behalf of Appellees Christian Legal Society and Council for Christian Colleges & Universities.

Before LOKEN, GRASZ, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

Employees of the University of Iowa targeted religious student organizations for discriminatory enforcement of its Human Rights Policy. After the district court ordered it to stop selectively enforcing the policy against one religious group, the University deregistered another—InterVarsity Graduate Christian Fellowship. InterVarsity filed suit. On cross-motions for summary judgment, the district court¹ held that University employees violated InterVarsity's First Amendment rights and denied qualified immunity. We affirm.

I.

A. University Policies for Student Organizations

The University of Iowa, like other state institutions of higher learning, allows students to form organizations. Those organizations, called Registered Student Organizations (RSOs), are "voluntary special interest group[s] organized for educational, social, recreational, and service purposes and [are] comprised of [their] members." InterVarsity App. 445. RSOs get a variety of benefits, including money, participation in University publications, use of the University's trademark, and access to campus facilities. Once there are enough students interested in forming an RSO, they submit a proposed constitution. University officials review the constitution before approving the group.

RSOs must comply with campus rules, including the University's Policy on Human Rights. They must also include similar language to the Human Rights Policy in their constitutions. The Policy provides:

[I]n no aspect of [the University's] 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.

InterVarsity App. 455.

RSOs must also abide by the RSO Policy in selecting members and leaders. The RSO Policy says that membership and engagement "must be open to all students without regard to race, creed, color, religion, national origin, age, sex [unless the organization is exempt under Title IX]² ... sexual orientation, gender identity ... or any other classification that deprives the person of consideration as an individual." InterVarsity App. 446. But, noting the importance of students’ ability to "organize and associate with like-minded students," the RSO policy also allows:

[A]ll 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]. ... [T]herefore any individual who subscribes to the goals and beliefs of a student organization may participate in and become a member of the organization.

Id. This is not an "all-comers policy," which would require RSOs to accept any student as a member or leader of the group.

The University permits RSOs to base membership and leadership on specific traits protected under the Human Rights Policy. For example, sports clubs and Greek organizations may hinge membership and leadership on sex, and the a cappella group, the "Hawkapellas," is limited to women. Some groups prefer or require membership in a racial group.³ Other groups require their members to be United States military veterans or subscribe to a certain ideological viewpoint or mission.⁴

The University has also permitted religious groups to require members or leaders to affirm certain beliefs. In 2003, it allowed the Christian Legal Society to require its members to sign "a statement of faith" affirming Christian beliefs. InterVarsity App. 2256. It also approved the constitutions of other religious groups like the Imam Mahdi Organization, which requires leaders "to refrain from major sins" and requires both leaders and voting members to "[b]e Muslim, Shiea." InterVarsity App. 2240. The University never thought these groups violated the Human Rights Policy.

B. Business Leaders in Christ

Things changed in 2017, when a student filed a complaint against Business Leaders in Christ (BLinC). He was denied a leadership role after refusing to affirm the group's belief that same-sex relationships were against the Bible, and he claimed the decision was because he is gay. The University agreed that BLinC violated the Human Rights Policy. It deregistered BLinC because requiring leaders to affirm BLinC's beliefs would "effectively disqualify individuals from leadership positions on the basis of sexual orientation and gender identity." D. Ct. Dkt. 74 at 8.

BLinC filed suit, asserting violations of free speech, free association, and free exercise of religion under the First Amendment. BLinC argued that the University selectively applied its Human Rights Policy⁵ and sought a preliminary injunction to restore its status as an RSO while the litigation was pending. That was granted. The district court⁶ noted in the preliminary injunction order that BLinC had "a fair chance of succeeding on the merits of its claims under the Free Speech Clause" and found that the University selectively applied its Human Rights Policy.⁷ Iowa App. 30.

In response to the preliminary injunction, the University, through its Center for Student Involvement and Leadership, began a "Student Org Clean Up Proposal" and reviewed all RSO constitutions to bring them into compliance with the Human Rights Policy.⁸ In charge of this review were Melissa Shivers, the Vice President for Student Life; William Nelson, Associate Dean of Student Organizations; and Andrew Kutcher, Coordinator for Student Development. Reviewers were told to "look at religious student groups first" for language that required leaders to affirm certain religious beliefs. InterVarsity App. 2287 (internal quotation marks omitted).

Around the same time the reviewers turned their focus to religious groups, the University amended the Human Rights Policy to expressly exempt sororities and fraternities from the policy prohibiting sex discrimination. But the University did deregister 38 student groups—most for failure to submit updated documents—and several were deregistered for requiring their leaders to affirm statements of faith. See D....