Which Discrimination Counts?

To show that it hasn't discriminated against a Christian student organization, the University of Iowa is withdrawing recognition from dozens of student groups. The move may be a sign of the political and legal times, as religious freedom advocacy groups are challenging public university policies that bar student organizations from discriminating against gay people. And the situation comes in the wake of a recent Supreme Court ruling that said antireligious bias can't be the motivation for state policies to protect gay rights.

To date, the university has withdrawn registration from 30 student organizations after they failed to submit constitutions that adhered to the university's human rights policy. The crackdown came amid a pending court case between the university and a Christian student organization, Business Leaders in Christ, which is suing the university after it withdrew recognition for the group for barring a gay member from assuming a leadership role.

The dispute began in March 2016, when a gay member of Business Leaders in Christ approached Hannah Thompson, then president of the organization, about becoming vice president. While the student was allowed to remain a member of the club, the group's executive board denied him a leadership role because “his decision to seek same-sex relationships was inconsistent with [Business Leaders in Christ]'s religious beliefs,” according to background provided by the legal group representing the Christian organization.

In an email to the student, Thompson wrote, “First and foremost, the reason why I made the decision that I could not allow you to be in a leadership position within [Business Leaders in Christ] is because of your desire to pursue a homosexual lifestyle/relationship.”

Almost a year later, the gay student, whose name has not been publicly disclosed, filed a complaint with the University of Iowa and requested that officials “either force [Business Leaders in Christ] to comply with the nondiscrimination policy (allow openly LGBTQ members to be leaders) or take away their status of being a student organization affiliated with the University of Iowa.”

As a result, Constance Shriver Cervantes, the university's compliance coordinator, investigated the matter and determined that Business Leaders in Christ violated the university's human rights policy, which reads in part, “In no aspect of [the University of Iowa'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. These principles are expected to be observed in the internal policies and practices of the University; specifically in the … policies governing programs of extracurricular life and activities.”

The policy is consistent with a 2010 Supreme Court decision that allows public universities to enforce antidiscrimination policies, even when religious groups claim that doing so goes against their beliefs. To have such policies, public colleges and universities must show that they apply the policies equally -- and not enforce them just against groups holding certain religious or political views.

At Iowa, student organizations are required to include a version of the above in their constitutions in order to be recognized as a registered student organization, a status that gives the organizations access to funding, email aliases, campus meeting spaces and other resources. After Shriver Cervantes completed her investigation, the university moved to withdraw recognition from Business Leaders in Christ, and so the organization sued the university to be reinstated in January 2018. Most recently, a federal district court ordered the extension of a preliminary injunction to maintain the group's registered status while further legal action is pending, citing the fact that hundreds of University of Iowa student groups were also found in violation of the human rights policy requirement. While most of those groups never discriminated against members or leaders, their constitutions lacked the necessary clause for official recognition, the same clause that Business Leaders in Christ was penalized for not including and ultimately violating.

"It appears a large number of student organizations were operating in violation of the university’s stated policies at the time the University revoked [Business Leaders in Christ]'s registered student organization status," Judge Stephanie Rose wrote in her decision. "The university does not reconcile that fact with how the proceedings against [Business Leaders in Christ] were carried out. Presently, too much remains unknown about what role [Business Leaders in Christ]'s viewpoint played, if any, in the decision to deregister the group."

Eric Baxter, vice president and senior counsel at the Becket Fund For Religious Liberty, a group representing Business Leaders in Christ, said that the ruling was "entirely unsurprising."

"The university admitted that hundreds of student groups were violating its policy, and it had no justification for why it was targeting [Business Leaders in Christ] alone. The court was left with no choice but to protect [Business Leaders in Christ] from the University’s religious discrimination," he wrote in an email.

A university spokeswoman, Anne Basset, said that Iowa would not comment on pending litigation, but provided details about recent campuswide enforcement of the human rights policy requirement. When Business Leaders in Christ filed its suit in January, 356 registered student organizations had no human rights clause or no constitution entirely; since then the university has required them to amend their constitutions by June 15. Of those, 39 failed to meet the June deadline and had their registrations revoked. Nine have since submitted proper documentation and have regained their registered status. Three organizations -- Global Buddies, NASP Graduate Student Organization and Students Today, Leaders Forever -- decided to voluntarily forfeit their registration.

The University of Iowa's 54 fraternities and sororities are in a slightly different situation. They're required to include a modified version of the human rights policy that includes an exemption based on federal law allowing them to discriminate membership on the basis of sex. Currently, 17 chapters have such a policy in place, and the remaining chapters plan to vote on a change to their constitutions when they return to campus in the fall.

Baxter sees this exemption, and the university's belated enforcement of its human rights policy requirement, as "switching tactics" in response to the court decision.

"The university can’t let fraternities and sororities, and environmental groups, and pro-life groups, and feminist groups, and Asian-American groups, and Republicans, and Democrats all choose leaders who support their missions and values, but then tell religious groups that they can’t have leaders who share theirs."

But the university's policy states that anyone must be allowed to join and participate fully in environmental, feminist and other groups, except that Greek houses have the right to limit membership based on gender.

Shane Windmeyer, founder and executive director of LGBTQ rights group Campus Pride, sees the lawsuit as the latest in a string of suits designed to exclude LGBTQ students under the cover of religious freedom.

"There is a large movement afoot by conservative, alt-right people who are trying to create court cases that are trying to push back on LGBT equality and fairness," he said. "These things don’t happen by chance."

In addition to Becket, the Alliance Defending Freedom -- a frequent player in orchestrated religious freedom movements, Windmeyer said -- filed a friends-of-the-court brief supporting Business Leaders in Christ.

“While touting diversity and inclusiveness, the University of Iowa is not practicing what it preaches,” Tyson Langhofer, director of the Alliance Defense Fund Center for Academic Freedom, said in a press release. “Today’s university students will be tomorrow’s legislators, judges, university presidents, and voters, but at the University of Iowa, they are learning that government can dictate who can lead religious student groups.”

While he agrees that religious groups may have a First Amendment right to discriminate in some situations, Windmeyer says that campuses that don't enforce antidiscrimination policies with religious groups are unsafe for LGBTQ students.

"Public campuses are about inclusion, they’re about creating a safe environment for all students to learn," Windmeyer said. "It’s not like [Business Leaders in Christ] can’t be an organization, but why should they be getting tax money?"

Kevin Kruger, president of the National Association of Student Personnel Administrators, has also noticed that outside organizations are beginning to play a larger role in on-campus debates.

"In this political climate, on the ultra-right there is some anti-LGBT sentiment, so it would not surprise me that there’s a lot of outside organizations and entities that want to have influence in student organizations," Kruger said. "We’re seeing that the campus is a bit of battleground for controversial issues, and there’s certainly an increase in external dollars influencing in what has been traditionally been on-campus efforts."

Both sides have cited the recent Supreme Court decision in Masterpiece Cake Shop v. Colorado Civil Rights Commission as fuel for the fire. The decision set a precedent for religious businesses and organizations to discriminate against LGBTQ people if doing so fell in line with their religious beliefs.

"It’s not a surprise that after the Supreme Court case that kind of gave this wishy-washy right to discriminate against gays who want a cake made, that this type of case would come forward," Windmeyer said.

"It’s senseless to say that groups violate the human rights policy by embracing ideas that others oppose," Baxter said. "Students should be free to join or ignore or support or protest whatever groups they want. But they can’t use the power of the university to shut groups up just because they don’t like them. As the Supreme Court has recently emphasized, adults ought to be mature enough to handle being exposed to beliefs with which they disagree."