(CN) — The University of Iowa asked an Eighth Circuit panel Wednesday to rule that university officials are not individually liable for violating a Christian student group’s First Amendment rights.
A federal judge in Des Moines ruled in September 2019 that the Iowa City-based university violated InterVarsity Graduate Christian Fellowship’s constitutional rights to free speech and free exercise of religion by revoking the group’s status as a registered student organization.
The university said InterVarsity’s requirement that its leaders abide by its Christian religious beliefs opposing same-sex relationships violated the school’s nondiscrimination and equal-opportunity policy.
U.S. District Judge Stephanie Rose, a Barack Obama appointee, ruled that the university did not consistently enforce that policy against all student groups. For example, it allows one group, Love Works, to bar from its leadership students who do not subscribe to its religious beliefs that support gay rights while saying InterVarsity may not enforce its traditional biblical views on sexuality.
Rose also held that three University of Iowa administrators directly involved in the decision to revoke InterVarsity’s campus privileges are individually liable for damages. The university appealed Rose’s decision on that issue to the Eighth Circuit, arguing the administrators should be granted qualified immunity from personal liability.
Rose’s September 2019 ruling in the graduate student group’s favor followed her ruling in February of that year that the university violated the First Amendment rights of another Christian student organization – Business Leaders in Christ, or BLiNC – by stripping its campus privileges after it refused to appoint a gay male to a leadership position.
In that case, Rose granted qualified immunity to the named university administrators. BLiNC appealed that holding to the Eighth Circuit, which heard oral arguments on the case in September but has not yet ruled.
Qualified immunity is a judicially created rule that shields government officials from personal liability for violations of individual constitutional rights provided the official does not violate law that is clearly established.
“Qualified immunity is the only issue before us. We have not appealed the merits of this case,” Iowa Solicitor General Jeffrey Thompson told the Eighth Circuit panel consisting of U.S. Circuit Judges James Loken, a George H.W. Bush appointee, and Jonathan Kobes and Steven Grasz, both Donald Trump appointees.
But, on the question of immunity, Thompson said, “Judge Rose got it wrong.”
Loken said he was troubled by the university’s decision to remove InterVarsity for its religious views while allowing Love Works to bar members who do not subscribe to its beliefs.
“I can’t get around the blatant discriminatory treatment of InterVarsity versus Love Works,” the judge said. “That’s not viewpoint neutrality, and if it’s proved, you don’t get qualified immunity.”
Thompson argued the university is struggling to consistently apply its human rights policy to more than 500 registered student organizations on campus, and that process is still going on as this case proceeds in the courts.
Kobes questioned Daniel Blomberg, senior counsel for the religious liberty law firm Becket which represented InterVarsity in Wednesday’s argument, about qualified immunity granted to BLiNC but not to InterVarsity. The only difference in the two cases, the judge said, is an intervening decision in which the district court said the university violated its order in the BLiNC case.
“Can that be right?” asked Kobes, who was also on the panel that heard the BLiNC appeal.
In response, Blomberg said, “That’s not our argument.”
Rather, he said, InterVarsity is arguing that the university cannot say that one student group may not discriminate on the basis of its religious beliefs while saying other groups may do so.
“That violates clearly established law,” he said.
Blomberg said it is undisputed that Love Works was treated differently.
“The university admitted that Love Works was allowed to select its leaders on the basis of religious beliefs, but InterVarsity was not,” the attorney said.
Blomberg told Courthouse News following Wednesday’s argument that he was “cautiously optimistic” about the outcome of the case based on the judges’ questions. “The court asked a lot of good questions that focused on the facts of the case,” he said. “That is a good sign.”
A spokesman for the Iowa Attorney General’s Office said the state would not be commenting on the oral arguments.
InterVarsity sued the university in 2018, naming then-President Bruce Harreld and four other administrators. The group claimed its rights of free speech and free exercise of religion were violated when the university revoked its registration, which entitled it to certain campus privileges, including university funding.
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