Intervarsity Christian Fellows v. University of Iowa ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-3389
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Intervarsity Christian Fellowship/USA; Intervarsity Graduate Christian Fellowship
lllllllllllllllllllllPlaintiffs - 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
lllllllllllllllllllllDefendants - Appellants
------------------------------
Jewish Coalition for Religious Liberty
lllllllllllllllllllllAmicus on Behalf of Appellee(s)
Asma T. Uddin
lllllllllllllllllllllAmicus 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
lllllllllllllllllllllAmici on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: January 13, 2021
Filed: July 16, 2021
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Before LOKEN, GRASZ, and KOBES, Circuit Judges.
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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.
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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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.
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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
2
The exemption for Title IX organizations was added in 2018 to encompass
sororities and fraternities.
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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.
3
These groups include the Chinese Basketball Club, the African Student
Association, Society of Hispanic Professional Engineers, and the South Asian Student
Alliance, among many others. InterVarsity App. 2243–45.
4
The UI Veteran’s Association restricts membership to those that are “past or
current military personnel” and their dependents. InterVarsity App. 2243. Students
for the Right to Life requires “that members of this organization hold pro-life
beliefs,” InterVarsity App. 2241, and the Feminist Majority Leadership Alliance
requires its members to “submit written agreement with the Feminist Majority
Foundation’s purpose and principles.” InterVarsity App. 2240 (citation omitted).
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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
5
BLinC pointed to LoveWorks, a Christian group that required its leaders to
affirm same-sex relationships (and was formed by the same student who submitted
the complaint against BLinC). The University approved LoveWorks’s constitution,
claiming it was compliant with the Human Rights Policy; but BLinC’s similar—but
contradictory—requirement was not.
6
BLinC’s case was before Judge Rose, who would later oversee InterVarsity’s
litigation.
7
BLinC’s case proceeded to summary judgment, where the district court found
that while the University violated BLinC’s free speech, free association, and free
exercise rights, the University and individual defendants were entitled to qualified
immunity because the law was not clearly established. See Bus. Leaders in Christ v.
Univ. of Iowa, 360 F. Supp. 3d 885, 908–09 (D. Iowa 2019) (BLinC I). On appeal,
we held that the law was clearly established that the University could not engage in
viewpoint discrimination against BLinC. See Bus. Leaders in Christ v. Univ. of Iowa,
991 F.3d 969 (8th Cir. 2021) (BLinC II). We granted the individual defendants
qualified immunity on the free exercise claim. Id.
8While the BLinC preliminary injunction did not order the University to review
all RSOs for compliance with the Human Rights Policy, the Administrators
“understood [the order] to mean that the University could not selectively enforce its
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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. Ct. Dkt. 74 at 13; InterVarsity App. 2388. InterVarsity was one of them.
C. InterVarsity
InterVarsity has been active at the University for over twenty-five years. The
group is affiliated with InterVarsity Christian Fellowship/USA, “a national ministry”
to “establish university-based witnessing communities of students and faculty who
follow Jesus as Savior and Lord, and who are growing in love for God, God’s Word,
and God’s people of every ethnicity and culture.” InterVarsity Br. 4 (citation
omitted) (cleaned up).
Membership and participation in the University’s chapter of InterVarsity is
open to all students, but those who seek leadership roles are required to affirm a
statement of faith, which includes “the basic biblical truths of Christianity.”
InterVarsity App. 2019.
RSO Policy.” D. Ct. Dkt. 74 at 10. In response, the Administrators decided to review
all RSO constitutions for compliance with the Human Rights Policy.
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Over twenty-five years, Iowa had no problem with InterVarsity. But in June
2018, Andrew Kutcher charged that InterVarsity’s constitution violated the Human
Rights Policy. InterVarsity’s leader, Katrina Schrock, responded that the constitution
did not prevent anyone from joining if they did not subscribe to the group’s faith, but
that only its leaders were required to affirm their statement of faith. Kutcher
countered that “[h]aving a restriction on leadership related to religious beliefs is
contradictory to [the Human Rights Policy].” InterVarsity App. 2095.
Schrock asked Kutcher if the University would accept amended language that
“requested [leaders] to subscribe” or that they “are strongly encouraged to subscribe”
to the statement of faith. InterVarsity App. 2094. Kutcher consulted with the
University’s general counsel, who told him that the proposed amended language was
not allowed.
InterVarsity did not bend, and so the University deregistered the group a few
weeks later. Afterwards, InterVarsity struggled with recruiting members, organizing
activities, and spent money and other resources in fighting its deregistration. After
the preliminary injunction in BLinC’s case was extended, the University ultimately
reinstated InterVarsity and the other religious groups it deregistered. But after having
lost a significant number of members and out of fear of “retaliation from the
University,” InterVarsity brought this action for First Amendment violations. D. Ct.
Dkt. 74 at 13.
D. Litigation
InterVarsity sued the University of Iowa; Bruce Harreld, the President of the
University; Thomas Baker, the Student Misconduct and Title IX Investigator; Melissa
Shivers; William Nelson; and Andrew Kutcher under 42 U.S.C. § 1983 in both their
official and individual capacities for violations of its rights to free speech, free
association, and free exercise under the First Amendment. It also asserted violations
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of its right to select its own leadership under the Religion Clauses of the First
Amendment and state law claims. InterVarsity sought damages and a permanent
injunction prohibiting the University from denying RSO status. Everyone cross-
moved for summary judgment, and the individual defendants sought qualified
immunity.
The district court first found that the University and the individual defendants
violated InterVarsity’s First Amendment rights and granted summary judgment on its
free speech, free association, and free exercise claims.9 It also granted summary
judgment to the University and individual defendants on InterVarsity’s Religion
Clauses claim.
As for qualified immunity, the court denied the individual defendants qualified
immunity on the free speech and association claims, finding that the law was clearly
established that the University could not discriminate based on viewpoint. The court
noted that while the defendants in BLinC I got qualified immunity, the court’s
preliminary injunction order “squarely applied” First Amendment law on the
“selective application of the Human Rights Policy to a religious group’s leadership
requirements.” D. Ct. Dkt. 47 at 46. Noting that the “finding of likelihood of success
on the merits is not the same as a final determination that a constitutional violation
has occurred,” the district court held that its preliminary injunction order in BLinC’s
9
The district court found that the University, Shivers, Nelson and Kutcher
violated InterVarsity’s First Amendment rights. But as for Baker and Harreld, the
court denied those individual defendants summary judgment on the constitutional
violations, explaining that “the record is insufficient to establish [their] liability . . .
[but] the same analysis and conclusions [] would apply to their qualified immunity
defense if Plaintiffs can establish their liability at trial.” D. Ct. Dkt. 74 at 49. On
appeal, the individual defendants ask us to assume that the district court denied
qualified immunity to all defendants, including Harreld and Baker. We accept that
invitation and will analyze the qualified immunity question as to all individual
defendants.
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case put the question beyond debate and clearly established the University’s actions
as unconstitutional. Id. at 46. Turning to InterVarsity’s free exercise claim, the court
found a free exercise violation and denied qualified immunity as moot because “each
constitutional violation was founded on the same underlying conduct” and
InterVarsity’s damages did not vary depending on the violation. Id. at 49.
The individual defendants appealed. They suggest that even if their actions
violated InterVarsity’s rights to free speech, they are entitled to qualified immunity
because the law was not clearly established. InterVarsity did not cross-appeal.10
II.
We review a district court’s denial of summary judgment on the basis of
qualified immunity de novo. Morris v. Zefferi, 601 F.3d 805, 808 (8th Cir. 2010)
(citation omitted). “In doing so, we grant the nonmoving party ‘the benefit of all
relevant inferences.’” Id. (citation omitted).
“Qualified immunity shields public officials from liability for civil damages if
their conduct did not ‘violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Turning Point USA at Ark. St. Univ.
v. Rhodes, 973 F.3d 868, 875 (8th Cir. 2020) (citation omitted), cert. denied, Hoggard
v. Rhodes, 2021 WL 2742809 (U.S. July 2, 2021) (No. 20-1066). We determine “(1)
10
InterVarsity argues on appeal that its rights under the Free Exercise Clause
and the Religion Clauses were also clearly established. But because the free exercise
claim is not properly raised before us in an appeal or cross-appeal, we lack
jurisdiction to consider it. See El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479
(1999) (“Absent a cross-appeal, an appellee may ‘urge in support of a decree any
matter heard in the record,’ . . . but may not ‘attack the decree with a view either to
enlarging his own rights thereunder or of lessening the rights of his adversary.’”)
(citation omitted).
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whether the facts shown by the plaintiff make out a violation of a constitutional or
statutory right, and (2) whether that right was clearly established at the time of the
defendant’s alleged misconduct.” Id. (cleaned up).
A. Constitutional Violation
InterVarsity’s free speech and free expressive association claims merge into
one because “[w]ho speaks on [InterVarsity’s] behalf . . . colors what concept is
conveyed.” Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the
Law v. Martinez, 561 U.S. 661, 680 (2010). So, we look to precedent dealing with
limited public forums and the right to free speech and association. See also BLinC
II, 991 F.3d at 980.
“A university establishes limited public forums by opening property limited to
use by certain groups or dedicated solely to the discussion of certain subjects.”
Gerlich v. Leath, 861 F.3d 697, 704–05 (8th Cir. 2017) (citation omitted) (cleaned
up). There is no dispute that the University of Iowa created a limited public forum
by granting RSOs official recognition and access to a variety of benefits. See BLinC
II, 991 F.3d at 981. And when a university does, it may restrict access to that limited
public forum so long as the “access barrier [is] reasonable and viewpoint neutral.”
Martinez, 561 U.S. at 679. “If a state university creates a limited public forum for
speech, it may not ‘discriminate against speech on the basis of its viewpoint.’”
Gerlich, 861 F.3d at 704–05 (citation omitted).
The district court found that the University’s Human Rights Policy was
reasonable and viewpoint neutral, but not as applied to InterVarsity. D. Ct. Dkt. 74
at 22. We agree. A reasonable “nondiscrimination policy that is viewpoint neutral
on its face may still be unconstitutional if not applied uniformly.” Alpha Delta Chi-
Delta Chapter v. Reed, 648 F.3d 790, 803 (9th Cir. 2011). “The government must
abstain from regulating speech when the specific motivating ideology or the opinion
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or the perspective of the speaker is the rationale for the restriction.” Rosenberger v.
Rector and Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).
That is what the University and individual defendants did to InterVarsity. For
decades, the University permitted RSOs to base their membership and leadership on
religious affirmations or other traits that are protected by the Human Rights Policy.
They did this for religious groups (e.g., the Christian Legal Society and Imam Mahdi
Organization) and secular groups (e.g., sororities and fraternities, ideological groups,
and groups that prefer their members or leaders to identify as a racial minority). In
fact, the University still permits this; but it didn’t for InterVarsity.
The district court found that the defendants likely violated BLinC’s
constitutional rights and ordered the University to apply the Human Rights Policy
equally to all RSOs. But instead of doing that, the University started a compliance
review that prioritized religious organizations. That review led to InterVarsity’s
deregistration, along with other religious groups. The University’s fervor dissipated,
however, once they finished with religious RSOs. Sororities and fraternities got
exemptions from the Human Rights Policy. Other groups were permitted to base
membership on sex, race, veteran status, and even some religious beliefs.
Take LoveWorks, for example. It was formed by the student who was denied
a leadership role in BLinC. LoveWorks requires its members and leaders to sign a
“gay-affirming statement of Christian faith.’” BLinC II, 991 F.3d at 973. Despite that
requirement—which violates the Human Rights Policy just as much as
InterVarsity’s—the University did nothing.
We are hard-pressed to find a clearer example of viewpoint discrimination. See
Rosenberger, 515 U.S. at 829 (“When the government targets not subject matter, but
particular views taken by speakers on a subject, the violation of the First Amendment
is all the more blatant.”). The University’s choice to selectively apply the Human
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Rights Policy against InterVarsity suggests a preference for certain viewpoints—like
those of LoveWorks—over InterVarsity’s. The University focused its “clean up” on
specific religious groups and then selectively applied the Human Rights Policy
against them. Other groups were simply glossed over or ignored.
Because the University and individual defendants violated InterVarsity’s First
Amendment rights, the question is whether their actions satisfy strict scrutiny. The
University “can survive strict scrutiny only if it advances ‘interests of the highest
order’ and is narrowly tailored to achieve those interests.” Fulton v. City of Phila.,
Pa., 593 U.S. __, __–__ (2021) (slip op., at *13) (citation omitted). Here, the district
court found that the University did not have a compelling government interest in
singling out InterVarsity for deregistration because it could not point to “any actual
harm to [the University’s] interests caused by InterVarsity’s religious leadership
requirements.” D. Ct. Dkt. 74 at 30. The court further found that the University’s
decision to deregister InterVarsity was not narrowly tailored because it “did not
meaningfully consider less-restrictive alternatives to deregistration.” Id. at 32.
On appeal, the University and individual defendants do not try to argue their
actions survive strict scrutiny. That is wise. Of course, the University has a
compelling interest in preventing discrimination. But it served that compelling
interest by picking and choosing what kind of discrimination was okay. Basically,
some RSOs at the University of Iowa may discriminate in selecting their leaders and
members, but others, mostly religious, may not. If the University honestly wanted a
campus free of discrimination, it could have adopted an “all-comers” policy like the
one in Martinez. See 561 U.S. at 671 (“[T]he Nondiscrimination Policy, as it relates
to the RSO program . . . mandates acceptance of all comers: School-approved groups
must ‘allow any student to participate, become a member, or seek leadership positions
in the organization, regardless of her status or beliefs.’”) (cleaned up).
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The University could also have made an explicit exemption for religious beliefs
like it did for sororities and fraternities. But it “offers no compelling reason why it
has a particular interest in denying an exception to [InterVarsity] while making them
available to others.” Fulton, slip op. at *15. “Instead, the University took an extreme
step—complete deregistration of InterVarsity—to discriminately prevent theoretical
harms that may never materialize.” D. Ct. Dkt. 74 at 33.
The University and individual defendants’ selective application of the Human
Rights Policy against InterVarsity was viewpoint discrimination in violation of the
First Amendment. It cannot survive strict scrutiny.
B. Clearly Established
We now consider whether it was clearly established that the University violated
InterVarsity’s First Amendment rights. We do not “define clearly established law at
a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (citation
omitted). Instead, “we look for a controlling case or a robust consensus of cases of
persuasive authority.” Turning Point USA, 973 F.3d at 879 (citation omitted). We
do not need “a prior case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.” Id. at 880 (citation omitted).
The University and individual defendants say that the law is not clearly
established when there is a direct conflict between civil rights laws and First
Amendment protections in the University setting. InterVarsity, on the other hand,
argues that its right to be free from viewpoint discrimination when speaking in a
university’s limited public forum was clearly established at the time of the violation.
In denying the individual defendants qualified immunity below, the district
court treated its preliminary injunction in the BLinC case as precedent. The court
explained that the order applied the appropriate First Amendment cases and put the
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individual defendants on notice that their actions were unconstitutional. It remarked,
“[t]he Court would never have expected the University to respond to that order by
homing in on religious groups’ compliance with the policy while at the same time
carving out explicit exemptions for other groups. But here we are.” D. Ct. Dkt. 74
at 40–41.
While we share the district court’s frustration with the University’s conduct,
we do not consider the BLinC preliminary injunction as precedent that clearly
established the individual defendants’ conduct was unconstitutional. “A decision of
a federal district court judge is not binding precedent in either a different judicial
district, the same judicial district, or even upon the same judge in a different case.”
Camreta v. Greene, 563 U.S. 692, 730 n.7 (2011) (citation omitted). “Many Courts
of Appeals therefore decline to consider district court precedent when determining
if constitutional rights are clearly established for purposes of qualified immunity.”
Id. While the Eighth Circuit “subscribes to a broad view of what constitutes clearly
established law,” and we often look to “state courts, other circuits and district courts,”
for what is clearly established, K.W.P. v. Kan. City Pub. Schs., 931 F.3d 813, 828 (8th
Cir. 2019) (citation omitted), we will not rely on a district court’s preliminary
injunction as clearly established law in this case.
But when the district court denied the individual defendants qualified
immunity, it did not have the benefit of our decision in BLinC II. We found that the
law was clearly established that universities may not engage in viewpoint
discrimination against RSOs based on a nondiscrimination policy. BLinC II, 991 F.3d
at 985–86. In reaching that conclusion, we relied on Supreme Court precedent, our
own case law, and other circuit decisions. The Supreme Court has clearly stated that
universities may not single out groups because of their viewpoint.11 Our own
11
See, e.g., Healy v. James, 408 U.S. 169, 187–88 (1972) (finding a First
Amendment violation where the university refused to recognize a student group’s
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precedent clearly establishes that this is a violation of the First Amendment.12 Out-of-
circuit decisions also define the selective application of a nondiscrimination policy
against religious groups as a violation of the First Amendment.13
Relying on those precedents, we held that the University’s choice to deregister
BLinC while permitting other student organizations to base membership and
leadership on specific traits or affirmations of beliefs was viewpoint discrimination
and a violation of the First Amendment that was clearly established. See BLinC II,
991 F.3d at 986. The University and individual defendants in that case took action
against BLinC well before InterVarsity was ever on their radar. If the law was clearly
official status because the university saw the group’s views as “abhorrent”); Widmar
v. Vincent, 454 U.S. 263, 277 (finding a university’s exclusion of religious groups
from accessing campus facilities because they were religious was in violation of the
“fundamental principle” of the First Amendment); Rosenberger, 515 U.S. at 837(finding that withholding benefits from a religious group solely because it is religious
“is a denial of [the group’s] right of free speech guaranteed by the First
Amendment.”). See also Martinez, 561 U.S. at 694–95 (finding that the university’s
“all-comers” policy was viewpoint neutral so it was in line with the First
Amendment).
12
See, e.g., Gay & Lesbian Students Ass’n v. Gohn, 850 F.2d 361, 368 (8th Cir.
1988) (finding a First Amendment violation where the university denied funding to
a student group that advocated for gay rights because the “government may not
discriminate against people because it dislikes their ideas”); Gerlich, 861 F.3d at 709
(denying qualified immunity to the university after it denied the use of its trademark
to a group that advocated for marijuana law reform).
13
See Christian Legal Soc’y v. Walker, 453 F.3d 853, 866–67 (7th Cir. 2006)
(reversing a district court’s denial of a preliminary injunction because the student
group showed a likelihood of success that the university had selectively applied its
nondiscrimination policy against it); Reed, 648 F.3d at 804–05 (remanding for trial
whether a nondiscrimination policy was selectively enforced when it prohibited
membership restrictions based on race, gender, religion, and sexual orientation).
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established when the University discriminated against BLinC, it was clearly
established when they did the same thing to InterVarsity.
We acknowledge that the intersection of the First Amendment and anti-
discrimination principles can present challenging questions. See, e.g., Masterpiece
Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1732 (2018) (noting
that the conflict between Colorado’s anti-discrimination law and a baker’s First
Amendment rights created “issues [] difficult to resolve”). “Qualified immunity gives
government officials breathing room to make reasonable but mistaken judgments
about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). And, if
applied properly, it protects “all but the plainly incompetent or those who knowingly
violate the law.” Id. (citation omitted).
But as Justice Thomas asked in Hoggard v. Rhodes, “why should university
officers, who have time to make calculated choices about enacting or enforcing
unconstitutional policies, receive the same protection as a police officer who makes
a split-second decision to use force in a dangerous setting?” __ S.Ct. __, *1 (2021)
(Thomas, J., statement regarding denial of certiorari). What the University did here
was clearly unconstitutional. It targeted religious groups for differential treatment
under the Human Rights Policy—while carving out exemptions and ignoring other
violative groups with missions they presumably supported. The University and
individual defendants turned a blind eye to decades of First Amendment
jurisprudence or they proceeded full speed ahead knowing they were violating the
law. Either way, qualified immunity provides no safe haven.
III.
The judgment of the district court is affirmed.
______________________________
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