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University of Iowa Officials Not Given Qualified Immunity After Deregistering Christian Student Group

College students praying on campus
By Joseph Fawbush, Esq. on July 27, 2021 3:43 PM

Religious freedom under the First Amendment and qualified immunity are both common issues for federal appellate courts to resolve these days. The Eighth Circuit Court of Appeals recently took on both in a case involving the University of Iowa's deregistration of certain religious student groups. The university deregistered the groups after concerns arose regarding their views on LGBTQ+ relationships.

Religious Freedom or Violation of University's Human Rights Policy?

A Christian student organization called Business Leaders in Christ required its student leaders to affirm that they believed same-sex relationships were against the Christian faith. This led a student to notify the university that he was denied a leadership role for being gay. The school agreed that BLinC's requirement violated the school's Human Rights Policy, which includes prohibiting discrimination against LGBTQ+ students, faculty, and staff. The school removed BLinC from its list of Registered Student Organizations.

BLinC sued, alleging a violation of their First Amendment rights. The district court then issued a preliminary injunction, prohibiting the school from revoking BLinC's status, suggesting that the school was selectively applying its Human Rights Policy to only certain groups.

In response, the school issued a "Clean Up Proposal" and reviewed all RSO constitutions to check for violations of their Human Rights Policy. Ultimately, the school deregistered 38 student groups, among them a few religious student groups which required members to sign or pledge certain beliefs.

Another Alleged First Amendment Violation

InterVarsity was one of the religious groups who had their status revoked. They sued the university in a separate lawsuit, alleging another violation of the First Amendment. The district court again sided with the student groups. What's more, since the university was on notice that its behavior in deregistering the student groups violated the First Amendment from the court's first preliminary injunction in the BLinC case, the district court waived qualified immunity for the individual employees responsible for the "Clean Up Proposal." The school and the employees named appealed.

No Qualified Immunity

The Eighth Circuit affirmed the lower court's decision. The Eighth Circuit siding with the student religious groups is not that surprising considering the Supreme Court's recent precedential opinions establishing a broad right to religious freedom under the First Amendment even when those beliefs may violate other federal laws. Circuit Judge Jonathan Kobes wrote that "[w]e are hard-pressed to find a clearer example of viewpoint discrimination" in the University's selective application of its Human Rights Policy.

More surprising was the court's denial of qualified immunity. Typically, qualified immunity protects all government officials who are not "plainly incompetent or those who knowingly violate the law." District court opinions are not precedential, so the University of Iowa officials argued that the law was not clearly established, particularly considering how complicated the intersection of civil rights laws and First Amendment protections are.

The court dismissed these concerns, however, quoting Justice Clarence Thomas - who asked in the Supreme Court's denial of cert 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?"

Of course, Justice Thomas' statement is not precedential either, but the quote explains the panel's view that university officials should not be given the benefit of the doubt in this case.

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