A panel of three Eighth Circuit Court of Appeal justices in St. Louis issued a ruling this week that holds university administrators personally liable when they discriminate against student groups based on viewpoint.
“We reverse the district court’s grant of qualified immunity to the individual defendants on BLinC’s free-speech and expressive-association claims but affirm its grant of qualified immunity to the individual defendants on BLinC’s free exercise claim. We remand for further proceedings consistent with this opinion,” Chief Lavenski Judge Smith wrote in the March 22 decision.
The student group Business Leaders In Christ (BLinC) sued the University of Iowa in 2017 alleging the school had discriminated against them because the group requires its student leaders to embrace and follow its religious beliefs, including to refrain from engaging in volitional, homosexual acts, according to media reports.
“The surprising thing to me was the brazenness with which the university officials disregarded our client's rights when they were deposed,” said Eric Baxter, vice president and senior counsel of Becket Law, who represents BLinC. “They essentially admitted that what they did was wrong but they apparently felt there would be no consequences for targeting students because of their religious beliefs and kicking them off-campus. I am surprised that university counsel didn't step in sooner to stop them.”
The Southern District of Iowa granted university officials qualified immunity on BLinC’s free speech and expressive association claims but the federal appeals court remanded and reversed the free exercise claim for further review by the district court.
As for practical consequences, Baxter said there is no difference between free speech and free exercise.
“There was a dissenting opinion that said this was also a clear violation of the free exercise clause and we agree with that judge’s opinion but even the majority opinion has the advantage of just making the law clear so that next time it will be clearly established," Baxter told the St. Louis Record. "The court did say that we won on the free exercise claim. It's just that the complications of the law might have been confusing and a reasonable official might not have totally grasped they were violating religious freedom in addition to free speech.”
The other two justices on the panel were circuit judges Duane Benton and Jonathan A. Kobes, an appointee of former President Donald Trump, with Kobes dissenting in part.
“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,” Kobes stated in the opinion. “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.”
May 5 is the deadline for any appeal by either party to the Supreme Court of the United States.
“We are still considering the option of appealing the free exercise issue,” Baxter said in an interview. “The argument would be that it was clearly established enough that there should not have been qualified immunity on that. If the university appeals, they would be appealing the qualified immunity issue on all of the counts.”