Intervarsity Christian Fellowship/USA v. Univ. of Iowa

408 F.Supp.3d 960

INTERVARSITY CHRISTIAN FELLOWSHIP/USA, Intervarsity Graduate Christian Fellowship, Plaintiffs,

v.The 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; and Thomas R. Baker, in his official capacity as Student Misconduct and Title IX Investigator and in his individual capacity, Defendants.

Case No. 3:18-cv-00080-SMR-SBJ

United States District Court, S.D. Iowa, Davenport Division.

Signed September 27, 2019

Daniel H. Blomberg, Pro Hac Vice, Eric S. Baxter, Pro Hac Vice, The Becket Fund For Religious Liberty, Matt M. Dummermuth, US Department of Justice, Washington, DC, Christopher D. Hagenow, William R. Gustoff, Whitaker Hagenow & Gustoff LLP, Des Moines, IA, for Plaintiffs.

George A Carroll, Des Moines, IA, for Defendants.

ORDER ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

STEPHANIE M. ROSE, JUDGE

Before the Court are the parties' cross-motions for partial summary judgment. Plaintiffs InterVarsity Graduate Christian Fellowship ("InterVarsity") and InterVarsity Christian Fellowship/USA ("InterVarsity USA") seek partial summary judgment on their various claims that Defendants—the University of Iowa (the "University"), Bruce Harreld, President of the University; Melissa Shivers, the University's Vice President for Student Life; William Nelson, the University's Associate Dean of Student Organizations; Andrew Kutcher, Coordinator for Student Organization Development at the University; and Thomas Baker, the University's Student Misconduct and Title IX Investigator—violated InterVarsity's rights under the First Amendment to the United States Constitution. [ECF No. 21]. Defendants move for partial summary judgment as to several of Plaintiffs' claims on the grounds of qualified immunity, failure to exhaust administrative remedies, and—in the case of Plaintiffs' claims for injunctive and declaratory relief—mootness. [ECF No. 51]. The Court held a hearing on the parties' motions on September 25, 2019. The matter is fully submitted and ready for decision. For the reasons stated herein, both motions are GRANTED in part and DENIED in part, and portions of Defendants' motion will be taken under advisement.

I. BACKGROUND¹

A. Registered Student Organizations at the University

The University allows its students to form student organizations, defined as "voluntary special interest group[s] organized for educational, social, recreational, and service purposes and comprised of its members." [ECF No. 21-3 at 114]. Such groups are separate legal entities from the University and may exist on campus whether or not they receive official recognition from the University. [ECF No. 40-2 ¶¶ 12–13].

Student organizations may register with the University as Registered Student Organizations ("RSO"). See generally [ECF No. 21-3 at 114]. RSO status carries with it many benefits, including eligibility to apply for funds from mandatory Student Activity Fees, inclusion in University publications, utilization of the University's trademarks, and eligibility to use campus meeting facilities. Id. To be eligible for RSO status, a student organization must have at least five members, of which eighty percent must be University students, and have "purposes [that] are consistent with the educational objectives of the University, and do not violate local, state or federal law." Id. at 115. An eligible organization wishing to register as an RSO must first hold a pre-registration meeting with appropriate University staff. Id. University staff will review the organization's proposed constitution and application for RSO status, and then submit it to the University's Student Organization Review Committee for final review. Id.

University policies impose various restrictions on RSOs. For example, an RSO must "adhere to the mission of [the] University, its supporting strategic plan, policies and procedures." Id. at 114. Also, an RSO's "goals, objectives, and activities must not deviate from established University policies and procedures." Id. Among those policies is the University's Policy on Human Rights (the "Human Rights Policy"). Relevantly, it states:

[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.

Id. at 124. The University requires that nearly identical language (with minor, non-substantive differences) be incorporated into the constitution of each RSO through a mandatory "UI Human Rights Clause" (the "Human Rights Clause"). [ECF Nos. 33-3 at 100; 40-2 ¶ 19].

The University does not have an "all-comers policy" that requires all RSOs to accept all students as members and leaders of the groups. [ECF No. 40-1 ¶ 16]. The University's "Registration of Student Organizations" policy (the "RSO Policy") "encourages the formation of student organizations around the areas of interests of its students, within the limits necessary to accommodate academic needs and ensure public safety." [ECF No. 21-3 at 114]. Further, the RSO Policy states:

It is the policy of the University that all registered student organizations be able to exercise free choice of members on the basis of their merits as individuals without restriction in accordance with the [Human Rights Policy]. The University acknowledges the interests of students to organize and associate with like-minded students, therefore any individual who subscribes to the goals and beliefs of a student organization may participate in and become a member of the organization.

Id. at 115. Within these parameters, the University has approved the constitutions of numerous RSOs that require members to subscribe to their respective missions. [ECF No. 40-1 ¶ 33]. For example, the National Society of Black Engineers requires its leaders to "put forth the effort to accomplish the goals" to "assist," "promote," and "[i]nform African-American engineers," and the Latina/o Graduate Student Association limits membership to "[a]nyone who supports the purpose of the organization, and is willing to commit to its objectives." Id.

However, the RSO Policy, incorporating the Human Rights Policy, stresses that membership and participation in an RSO

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), 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.

[ECF No. 21-6 at 163]. The parenthetical releasing Title IX-exempt organizations from the policy's limitations on sex-based discrimination was only added in the summer of 2018 and was meant as an explicit exemption for fraternities and sororities. Id. at 147; [ECF No. 40-1 ¶ 27]. There is no dispute that the University's fraternities and sororities are RSOs or that they are generally segregated on the basis of sex.

Under the University's interpretation of the Human Rights Policy, religious RSOs are not permitted to require their leaders to agree with and live by the organizations' religious beliefs, as this is viewed as a form of religious discrimination. [ECF No. 40-1 ¶ 208]. Further, the University does not allow religious groups to encourage their leaders to follow the groups' religious beliefs. See [ECF No. 21-8 at 61] (email from Defendant Kutcher to InterVarsity rejecting InterVarsity's proposal that it be allowed to "strongly encourage[ ]" its leaders to subscribe to its beliefs).

Yet, "[o]ther groups are still permitted to have statements requiring or ‘encouraging’ their leaders and members to be part of a class protected under the [Human Rights Policy]." [ECF No. 40-1 ¶ 209]. Sports clubs, which the University treats as RSOs, may restrict membership, participation, and leadership based on sex. Id. ¶¶ 42–43. The a capella student group Hawkapellas—Iowa controls membership through "vocal auditions" in order "to bring a sound of an all-female a capella group to Iowa," [ECF No. 21-8 at 86]; Intersection, a male a capella group, does the same for male singers, id. at 90; and Tau Sigma Military Dental Club restricts membership to "full-time, military-sponsored ... students" at the University's College of Dentistry, [ECF No. 21-5 at 234]. The Iowa National Lawyer's Guild excludes individuals because of their political views, even though such an exclusion constitutes discrimination on the basis of creed. [ECF Nos. 21-6 at 183; 40-1 ¶ 211].² The Women in Science and Engineering Ambassadors encourage women to be members, [ECF No. 21-8 at 132], and the Iowa Edge Student Organization is "open to all [University] students with particular emphasis for," among other traits and interests, "students of color," id. at 94.³

Although the RSO Policy exempts fraternities and sororities from the Human Rights Policy's restrictions on sex-based discrimination, the membership or leadership requirements of some fraternities and sororities discriminate based on other protected characteristics. Zeta Beta Tau's constitution provides that, while an ordinary recruit "must attain a positive 70% vote of members" to join the fraternity, "any recruit who...