Case 3:18-cv-00080-SMR-SBJ Document 36 Filed 01/15/19 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA
EASTERN DIVISION

)
INTERVARSITY CHRISTIAN ) CASE NO. 3:18-CV-00080
FELLOWSHIP/USA, and INTERVARSITY )
GRADUATE CHRISTIAN FELLOWSHIP, )
)
Plaintiffs, )
)
vs. )
)
THE UNIVERSITY OF IOWA; BRUCE ) DEFENDANTS’ BRIEF IN SUPPORT
HARRELD, in his official capacity as ) OF THEIR RESISTANCE TO
President of the University of Iowa and in his ) PLAINTIFF’S MOTION FOR
individual capacity; MELISSA S. SHIVERS, ) PARTIAL SUMMARY JUDGMENT
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 THOMAS )
R. BAKER, in his official capacity as Student)
Misconduct and Title IX Investigator and in )
His individual capacity, )
)
Defendants. )
)

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................................... 3

INTRODUCTION .................................................................................................................... 6

FACTUAL BACKGROUND ................................................................................................... 7

LEGAL STANDARD ............................................................................................................... 10

ARGUMENT

I. InterVarsity’s Motion For Partial Summary Judgment Is Premature And The

Court Should Deny It ....................................................................................................... 11

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II. The University of Iowa’s Regulation Of InterVarsity’s Exercise Of Its First

Amendment Rights Was Justified In Light Of The Purposes For Which Its
Limited Public Forum Was Created ................................................................................ 14
A. InterVarsity Exists Within A Limited Public Forum Created By The
University To Serve Its Educational Mission ......................................................... 14
B. The University Of Iowa’s Forum Exists For A Variety Of Purposes-Not
Just Association With Like-Minded Individuals .................................................... 15
C. InterVarsity Has Wrongly Framed The University’s Justified Regulatory
Actions As An Attack On Religious Groups .......................................................... 17

III. The University of Iowa’s Application Of Its Policy Was Both Reasonable And
Viewpoint Neutral ............................................................................................................ 18
A. The University’s Policy Is Reasonable ................................................................... 19
1. The Registration Of Student Organizations Policy Expressly Anticipates
That Student Groups Will Adhere To The Human Rights Policy ................. 19
2. Martinez Offers Further Guidance On Reasonableness................................. 20
B. The University’s Policy Is Viewpoint Neutral........................................................ 22
1. The University’s Policy Is Facially Neutral................................................... 22
2. The University’s Policy Is Neutral As-Applied ............................................. 23

IV. The University Of Iowa’s Policy Does Not Significantly Affect InterVarsity’s
Ability To Advocate Its Viewpoints, And As Such, Does Not Violate InterVarsity’s
Right To Free Association ............................................................................................... 24
A. The University Agrees That InterVarsity Is An Expressive Association ............... 25
B. The University’s Policy Does Not Significantly Affect The Group’s
Ability To Advocate Its Viewpoints ....................................................................... 25

V. The University Of Iowa’s Policy Is Both Neutral And Generally Applicable, And
Does Not Violate InterVarsity’s Right To Free Exercise of Religion ............................. 28
A. The University’s Policy Is Neutral ......................................................................... 32
B. The University’s Policy Is Generally Applicable ................................................... 32
1. Equal Enforcement And “Categorical Exemptions”...................................... 32
2. Silent Approval Of Discrimination ................................................................ 33

VI. The Ministerial Exception Does Not Apply .................................................................... 34

A. The University Must Regulate Membership And Leadership Requirements
For Campus Religious Groups That Elect To Receive Government Funding
And Resources ........................................................................................................ 34

VII. Permanent Injunctive Relief ............................................................................................ 35

A. No Injunction Is Necessary At This Time .............................................................. 35

CONCLUSION ......................................................................................................................... 36

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TABLE OF AUTHORITIES

PAGE

CASES

Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790 (9th Cir. 2011) .................... 21-23

BLinC v. The University of Iowa, et al., No. 17-cv-00080-SMR-SBJ (S.D. Iowa) ... 12-13,

......................................................................................................... 16-17, 19, 22-23, 31, 30

Boy Scouts of America v. Dale, 530 U.S. 640 (2000) ................................................ 25

Braunfeld v. Brown, 366 U.S. 599 (1961) ................................................................. 30

Cantwell v. Connecticut, 310 U.S. 296 (1940) .......................................................... 30

Celotex v. Catrett, 477 U.S. 317 (1986) .................................................................... 10

Christian Legal Soc. Chapter of the University of California, Hastings

College of the Law v. Martinez, 561 U.S. 661 (2010) ............................ 14-15, 18-21, 25-26, 35

Christian Legal Soc. Chapter of University of California v. Kane, No. C 04-04484

JSW, 2006 WL 997217, at *1–4 (N.D. Cal. May 19, 2006).................................... 30-31

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ..... 28-29

City of Boerne v. Flores, 521 U.S. 507 (1997) .......................................................... 28

Cornelis v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788 (1985) ............. 14

Employment Division, Oregon Department of Human Resources v. Smith, 494

U.S. 872 (1990) ........................................................................................................ 28,30-31

Follett v. McCormick, 321 U.S. 573 (1944) .............................................................. 30

Gerlich v. Leath, 861 F.3d 697 (8th Cir. 2017) ......................................................... 22

Gillette v. United States, 401 U.S. 437 (1971)........................................................... 30

Grutter v. Bollinger, 539 U.S. 306, 328–29 (2003) ................................................... 29

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Holt v. Hobbs, 135 S. Ct. 853 (2015)......................................................................... 28,31

Hosanna-Tabor Evangelical Lutheran School v. EEOC, 565 U.S. 171 (2012) ........ 34-35

Iverson v. Johnson Gas Appliance Co., 172 F.3d 524 (8th Cir. 1999) ...................... 11

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) ......... 14

Lee v. Sixth Mount Zion Baptist Church, 903 F.3d 113 (3d Cir. 2018) ..................... 35

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ............................ 29

Mann v. Yarnell, 497 F.3d 822 (8th Cir. 2007).......................................................... 10

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ........................................................ 30

National Endowment for Arts v. Finley, 524 U.S. 569 (1998)................................... 26

Naucke v. City of Park Hills, 284 F.3d 923 (8th Cir. 2002) ...................................... 10

Othman v. City of Country Club Hills, 671 F.3d 672 (8th Cir. 2012) ....................... 10

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ...................................................... 30

Prince v. Massachusetts, 321 U.S. 158 (1944) .......................................................... 30

Regents of the University of California v. Bakke, 438 U.S. 265 (1978) .................... 29

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ........................................................... 18

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) ................ 14,22

San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024 (9th Cir. 2004) . 28-29

Sitzes v. City of West Memphis, Ark., 606 F.3d 461 (8th Cir. 2010).......................... 10

United States v. Lee, 455 U.S. 252 (1982) ................................................................. 30

University of California v. Bakke, 438 U.S. 265 (1978) ............................................ 29

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................................................. 23

Watkins Inc. v. Lewis, 346 F.3d 841 (8th Cir. 2003) ................................................. 35

West Virginia Bd. of Education v. Barnette, 319 U.S. 624 (1943) ............................ 30

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Widmar v. Vincent, 454 U.S. 263 (1981) ................................................................... 15,35

Wisconsin v. Yoder, 406 U.S. 205 (1972) .................................................................. 30

Wooley v. Maynard, 430 U.S. 705 (1977) ................................................................. 30

Constitutional Amendments

U.S. Cost. Amend. 1. ................................................................................................. 28

Federal Statutes

Fed. R. Civ. P. 26(f) ................................................................................................... 12

Fed. R. Civ. P. 56(a) .................................................................................................. 10

Fed. R. Civ. P. 56(c)(1)(A) ........................................................................................ 10

Fed. R. Civ. P. 56(c)(1)(B) ........................................................................................ 10

Fed. R. Civ. P. 56(d) .................................................................................................. 11,13

20 USC § 1681 ........................................................................................................... 33

42 U.S.C. §§ 2000bb-1(a), (b) ................................................................................... 25,28

State Statutes

Iowa Code Ch. 216 .................................................................................................... 21,33

Federal Regulations

34 C.F.R. § 106.32 ..................................................................................................... 33

34 C.F.R. § 106.41 ..................................................................................................... 33

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INTRODUCTION
This case stems from action taken by the University of Iowa in an attempt to fairly

enforce compliance with its Human Rights Policy by all Registered Student Organizations

(“RSOs”). The University was recently sued by another student group for deregistering it after it

failed to comply with the University’s Human Rights Policy by excluding a student from its

leadership team on the basis of his sexual orientation. As a result of that pending litigation, the

University undertook an extensive review of the constitutions of all 513 Registered Student

Groups on campus. Upon review of InterVarsity’s constitution, the University determined that

certain clauses in that document restricting leadership opportunities to Christian students

contradicted the University’s Human Rights Policy. The University asked InterVarsity to comply

with the Human Rights Policy by removing the discriminatory clauses. InterVarsity refused and

was subsequently deregistered.

InterVarsity has done its best to frame the University’s actions as an attack on

“disfavored religious groups.” InterVarsity’s position is not tenable. While InterVarsity and

seven other religious groups were deregistered for failing to include the full and complete

Human Rights Policy in their RSO constitutions, so were thirty other groups which are not

religiously affiliated. InterVarsity discusses Greek organizations, sports organizations, and even

scholarship funds at length, and points to incidents that took place nearly a decade ago as

evidence that the University has selectively enforced its policy. These arguments are nothing

more than a distraction from the case at hand, which begins and ends with the University’s

review of RSO constitutions in January and February 2018.

This is not a case about discrimination against InterVarsity and other religious groups by

a public university, but rather, involves an attack on the University by a religious group which

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wishes to continue to receive state funding and resources while excluding University of Iowa

students from its leadership team on the basis of religion. Allowing such actions by InterVarsity

would open the door for further discrimination by all manner of student groups. The University

has a duty to ensure that all students have equal access to educational opportunities on its

campus, that all students are safe in the University of Iowa community, and that students’ civil

rights are protected and civil rights laws are upheld. InterVarsity’s vision for its group

membership and leadership is not compatible with the vision set forth by the University when it

created its limited public forum for student speech.

It is well settled that a public University that has created a limited public forum for RSO

speech may regulate the speech of those groups in order to serve the purposes of its forum. The

University has not discriminated against InterVarsity, but has merely asked InterVarsity to

comply with its Human Rights Policy. It has asked the same of all other RSOs. If InterVarsity

wishes to restrict its leadership to students who affirm its statement of faith, it may certainly do

so. What it may not do is exclude students on the basis of religion while continuing to receive

public funding. While “the Constitution may compel toleration of private discrimination in some

circumstances does not mean that it requires state support for such discrimination.” Norwood v.

Harrison, 413 U.S. 455, 463 (1973).

FACTUAL BACKGROUND
As a result of litigation stemming from the administration of its Human Rights Policy, the

University, through its Center for Student Involvement and Leadership (“CSIL”), undertook an

extensive review of 513 Registered Student Organization Constitutions in late January and early

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February of 2018. 1 Defendants’ Statement of Additional Material Facts (“DSOF”) ¶ 46. CSIL’s

review revealed that 157 RSOs had correctly included the complete Human Rights Policy in their

constitutions. DSOF ¶ 47. However, 356 RSOs were out of compliance. DSOF ¶ 47. On

February 7, 2018, CSIL restricted access to the student organization website, OrgSync, in order

to ensure that CSIL staff would have the opportunity to review every constitution prior to

uploading it to the RSO’s website. DSOF ¶ 47.

On April 20, 2018, CSIL staff sent an email to each RSO which had failed to include the

full and correct Human Rights Policy in its group constitution. DSOF ¶ 48. CSIL requested that

RSOs resubmit their updated or corrected constitutions by May 3, 2018. DSOF ¶ 48. By the May

3, 2018 deadline, CSIL had received 201 updated submissions. DSOF ¶ 49. On May 4, 2018,

CSIL staff began its review of the submissions it had received. DSOF ¶ 49. Throughout the rest

of that month, CSIL staff worked closely with RSO leaders to ensure that each group could

successfully include the full Human Rights Policy in its constitution. DSOF ¶ 50.

On June 1, 2018, CSIL staff sent a follow-up email to the RSOs which had not yet

submitted an updated constitution. DSOF ¶ 51. CSIL indicated that if constitutions were not

submitted and approved by June 15, 2018, the RSOs failing to submit constitutions would be

deregistered. DSOF ¶ 51. CSIL indicated, however, that RSOs would be automatically

reregistered once their constitutions had been submitted and approved. DSOF ¶ 51. The follow-

up email reminded students that language contradicting the University’s Human Rights policy

would have to be removed. DSOF ¶ 51.

1
The University did not review sorority and fraternity constitutions at that time, because campus Greek
organizations are nested under the Fraternity and Sorority Life (“FSL”) umbrella and are not regulated by the Center
for Student Involvement and Leadership (“CSIL”). FSL began a review of sorority and fraternity constitutions in fall
of 2018.

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On June 12, 2018, CSIL staff, Laurynn King, emailed two former InterVarsity leaders,

asking them to submit updated governing documents. DSOF ¶ 52. Ms. King indicated that CSIL

had attempted to contact InterVarsity’s leaders multiple times, but that no one from the group

had responded. DSOF ¶ 52. Ms. King told the InterVarsity leaders that they had only one more

day prior to the deadline to submit their updated constitution and bylaws to CSIL for review.

DSOF ¶ 52. Katrina Schrock, current President of the InterVarsity Graduate Christian

Fellowship at the University of Iowa, responded to Ms. King’s email, indicating that the group’s

documents had already been submitted through OrgSync. DSOF ¶¶ 54–55. Andrew Kutcher

responded, indicating that he had not received the documents. DSOF ¶ 55. Ms. Schrock

resubmitted the documents, and Mr. Kutcher reviewed them. DSOF ¶ 55–56. After his review of

InterVarsity’s constitution, Mr. Kutcher emailed Ms. Schrock to inform her that he found some

of the provisions of the constitution to be in conflict with the University’s Human Rights Policy.

DSOF ¶ 56. Specifically, Mr. Kutcher felt that Articles II, III, IV, and VII were problematic.

DSOF ¶ 56. Each of the referenced articles contained some statement regarding the requirement

that a prospective InterVarsity leaders affirm the group’s statement of faith. DSOF ¶¶ 56–61.

As a result of its refusal to comply with the University’s Human Rights Policy,

InterVarsity was deregistered. Plaintiff’s Statement of Material Facts (“SOF”) ¶¶ 13, 201.

However, it was not the only group deregistered as a part of the “RSO clean-up” process. SOF ¶¶

14, 202. On July 18, 2018, thirty-eight other noncompliant groups were also deregistered. DSOF

¶ 62. The great majority of the campus groups deregistered in the summer of 2018 were not

religiously affiliated. SOF ¶ 14.

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LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is only

appropriate if “the movant shows that there is no genuine dispute as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex v.

Catrett, 477 U.S. 317, 321 (1986). In considering a motion for summary judgment, the court

must view the evidence in a light most favorable to the nonmoving party. Naucke v. City of Park

Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving party may not rely on mere allegations

or denials, but must demonstrate the existence of specific facts that create a genuine issue for

trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). A nonmoving party’s assertion that a

fact is genuinely disputed must be supported by materials in the record such as “depositions,

documents, electronically stored information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions, interrogatory answers, or other

materials . . ..” Fed. R. Civ. P. 56(c)(1)(A). A party may also show that a fact is disputed by

demonstrating that the “materials cited do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R.

Civ. P. 56(c)(1)(B). A dispute is considered to be “genuine” if the evidence presented could

cause a reasonable jury to return a verdict for either party. Othman v. City of Country Club Hills,

671 F.3d 672, 675 (8th Cir. 2012). A fact is material if its resolution affects the outcome of the

case. Id. “Disputes that are not ‘genuine,’ or that are about facts that are not ‘material,’ will not

preclude summary judgment.” Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir.

2010).

Plaintiff has set forth the correct standard for determination of whether a permanent

injunction is appropriate in the Legal Standard section of its Memorandum. See Plfs. Memo, p. 7.

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Defendants have filed a Motion for Continuance of the Court’s consideration of

Plaintiff’s Partial Motion for Summary Judgment. As outlined in the Memorandum in Support of

that Motion, it is Defendants’ position that Plaintiff’s Motion is premature and improperly

forecloses Defendants’ ability to pursue its qualified immunity defense. Should the Court decide

that determination of Plaintiff’s Motion is appropriate at this time, Defendants urge it to consider

that this Resistance has been made without access to any of the important information outlined in

the affidavit submitted in support of Defendants’ Rule 56(d) Motion for Continuance. See

Defendants’ Rule 56(d) Motion for Continuance, Memorandum in Support, and Affidavit of

George Carroll, filed January 11, 2019.

ARGUMENT

I. InterVarsity’s Motion for Partial Summary Judgment is Premature and the Court
Should Deny It.
“As a general rule, summary judgment is proper ‘only after the nonmovant has had

adequate time for discovery.’” Iverson v. Johnson Gas Appliance Co., 172 F.3d 524, 530 (8th

Cir. 1999). When a summary judgment has been prematurely filed, a nonmovant may request a

continuance under Federal Rule of Civil Procedure 56(f) “until adequate discovery has been

completed if they otherwise cannot present facts sufficient to justify their opposition.” Id. This

option exists “to prevent a party from being unfairly thrown out of court[.]” Id. Though

Defendant is custodian to many of the documents at issue in this case, Plaintiff InterVarsity

controls all of the information related to its claims against the University, including all persons

with knowledge (a complete list has not yet been disclosed), knowledge of alleged conversations

between its representatives and the University, and information relating to its damages. If the

University is not permitted to conduct discovery and to have a “fair chance” to respond to

Plaintiff’s Motion, “summary judgment is not proper and will be reversed.” Id.
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Though InterVarsity filed its Petition on August 6, 2018, discovery in this case is still in

its infancy. Under Federal Rule of Civil Procedure 26(f), the parties may not exchange discovery

until after they have conferred regarding any issues which might arise in the case and have filed

a discovery plan. See Fed. R. Civ. P. 26(f). The Scheduling Order and Discovery Plan in this

matter was filed on November 2, 2018, and the Scheduling and Trial Setting Order was filed by

the Court on November 7, 2018. On December 13, 2018, prior to even exchanging Initial

Disclosures with Defendants, Plaintiff filed its Motion for Partial Summary Judgment and

supporting documents. Plaintiff supported its entire Motion by declarations from two

InterVarsity representatives, as well as by hundreds of documents collected in a related case

currently pending before this Court. See BLinC v. The University of Iowa, et al., No. 17-cv-

00080-SMR-SBJ (S.D. Iowa). Defendants moved for an extension of time to resist Plaintiff’s

Motion, since Plaintiff chose to file over the Christmas and New Year holidays when many

University of Iowa staff are out of the office. The Court granted Defendants’ Motion for more

time.

On January 3, 2019, the parties exchanged Initial Disclosures. In its Initial Disclosures,

InterVarsity indicated that there were several individuals likely to have discoverable information

about this case: Kevin Kummer (InterVarsity’s Senior Campus Minister), Katrina Schrock (the

current president of the InterVarsity Graduate Chapter at the University of Iowa), the “current

and former officers” of the InterVarsity Graduate Chapter at the University of Iowa, as well as

“all officers of any student groups on campus that promote the interests of students on the basis

of any category identified in the University’s nondiscrimination policies.” See InterVarsity’s

Rule 26(a)(1) Initial Disclosures, p. 1–2. InterVarsity did not provide a specific listing of the

“current and former officers” of the InterVarsity Graduate Chapter, or specify which “officers of

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any student groups on campus” it believes may have information about this case. InterVarsity

also indicated that it may have “other witnesses” to identify during the course of this litigation

but did not provide names or contact information for those individuals. After reviewing

InterVarsity’s Initial Disclosures in this matter, Defendants served their discovery requests on

January 9, 2019.

Defendants have not had an opportunity to conduct even minimal discovery in this case.

Though Plaintiff would like this Court to believe that this case is a carbon copy of BLinC and

should be evaluated as such, that is simply not the case. BLinC arose from the University’s

implementation of its Human Rights Policy under a complaint-driven system. InterVarsity was

filed as a result of the University’s attempt to enforce compliance with its Human Rights Policy

through a review of constitutions for each and every registered student organization on campus. 2

While Defendants freely admit that many of the documents provided by Plaintiff in support of its

Motion apply in both cases, additional discovery is needed in this case in order for Defendants to

properly defend themselves. Under Federal Rule of Civil Procedure 56(d):

If a non-movant shows by affidavit or declaration that, for specified reasons, it

cannot present facts essential to justify its opposition, the court may:
(1) Defer considering the motion or deny it;
(2) Allow time to obtain affidavits or declarations or to take discovery; or
(3) Issue any other appropriate order.

Fed. R. Civ. P. 56(d). At a minimum, Defendants need to depose Mr. Kummer, Ms.

Schrock, and any of the other people with relevant knowledge that InterVarsity did not

disclose in its Initial Disclosures. The facts that Defendants hope to uncover are outlined

2
Again, fraternities and sororities were not reviewed alongside other groups, but began a separate review process in
fall 2018.

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in the affidavit filed in conjunction with Defendants’ Motion for Rule 56(d) Continuance.

See Affidavit of George Carroll.

As such, Defendants urge the Court to grant a continuance of its consideration of

Plaintiff’s Motion for Partial Summary Judgment until such time as Defendants have

been able to conduct depositions of Ms. Schrock and Mr. Kummer, as well as any other

individuals who might be identified in the interim, and until Defendants have received

Plaintiff’s responses to their written discovery requests.

II. The University of Iowa’s Regulation of InterVarsity’s Exercise of Its First

Amendment Rights Was Justified in Light of the Purposes for Which its Limited
Public Forum Was Created.

A. InterVarsity exists within a limited public forum created by the University to

serve its educational mission.
The parties agree that the University has created a limited public forum for the speech of

student groups. See Christian Legal Soc. Chapter of the University of California, Hastings

College of the Law, 561 U.S. 661, 678–83 (2010) (hereinafter “Martinez”). Educational

institutions may “legally preserve the property under [their] control for the use to which it is

dedicated.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 390 (1993).

Further, a university may restrict access to the public forum it has created, as long as the

restrictions are “reasonable in light of the purpose served by the forum.” Rosenberger v. Rector

and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995), quoting Cornelis v. NAACP Legal

Defense & Ed. Fund, Inc., 473 U.S. 788, 809 (1985). Public universities enjoy “a significant

measure of authority over the type of officially recognized activities in which their students

participate,” though the Court makes the final decision regarding whether a public university has

exceeded constitutional constraints. See Martinez, 561 U.S. at 685–86. As such, the First

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Amendment Rights InterVarsity asserts must be analyzed “in light of the special characteristics

of the school environment.” Id., quoting Widmar v. Vincent, 454 U.S. 263, 268 (1981).

Under a limited public forum analysis, a public University may regulate speech within

the forum it has created as long as the regulations are 1) viewpoint neutral and 2) reasonable in

light of the purposes of the forum. Martinez, 561 U.S. at 679 (“Any access barrier must be

reasonable and viewpoint neutral.”).

B. The University of Iowa’s forum exists for a variety of purposes—not just

association with like-minded individuals.
“A college’s commission—and its concomitant license to choose among pedagogical

approaches, is not confined to the classroom, for extracurricular programs are, today, essential

parts of the educational process.” Martinez, 561 U.S. at 686. In order to determine whether the

University’s actions are reasonable in light of the purposes of the forum, it is important to know

why the University created the forum. The forum at issue here was created for use by

extracurricular student groups. Participation in Registered Student Organizations is a key part of

the educational experience available to University of Iowa students. RSOs “play an important

role in developing student leadership and providing a quality campus environment.” DSOF ¶ 5.

InterVarsity takes a rather narrow view of the University’s purposes for creating the forum at

issue in this case.

Plaintiff argues that the singular purpose of the forum is to “let[] students associate based

on shared beliefs and interests” and to grant groups the freedom to organize and associate with

like-minded students. Plfs. Memo, p. 10. While providing students a forum for association with

like-minded individuals is an important purpose of the RSO forum, there are several other

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equally-important purposes which Plaintiff does not acknowledge. The University sets forth

some of its other goals for the forum in its “Registration of Student Organizations” document:

Student organizations are important links in the co-curricular activities of the

University of Iowa. They play an important role in developing student
leadership and providing a quality campus environment. As such, the
University encourages the formation of student organizations around the areas of
interests of its students, within the limits necessary to accommodate academic
needs and ensure public safety.
DSOF ¶ 5 (emphasis added). As outlined above, ensuring academic growth and access to

educational opportunities, and a safe environment in which to do so, are also purposes of the

RSO forum. DSOF ¶¶ 4–10. Further, the University requires each student organization to abide

by the mission of the University, its supporting strategic plan, policies, and procedures. DSOF ¶

6. The RSO document specifically incorporates the Human Rights Policy, by which the

University strives to promote diversity and to ensure that all students are granted equal access to

educational opportunities within the forum. DSOF ¶ 7. The University’s Statement on Diversity

explicitly states that “[t]he University believes that a rich diversity of people and the many points

of view they bring serve to enhance the quality of educational experience at the University of

Iowa.” DSOF ¶ 3. The University expects that participation in student organizations, in

conjunction with a wide range of students from varying backgrounds, will “enhance a student’s

educational experience” as opposed to merely providing a social scene for students. DSOF ¶ 3.

These forum purposes are not fulfilled when students are excluded or rejected from Registered

Student Organizations on the basis of a protected characteristic.

As this Court correctly summarized in its Ruling in Business Leaders in Christ v.

University of Iowa, et al., after reviewing the University’s RSO policy and the various statements

therein requiring compliance with the University’s Human Rights Policy:

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[T]he intended purpose of the student organization registration program is to

allow students to engage with other students who have similar interests and in
doing so, students should only fear rejection on the basis of their own merits, not
because of their membership in a protected class.

No. 3:17-cv-00080-SMR-SBJ, Order filed 01/23/2018, p. 21. The University has not sought to

discriminate against religious groups operating in its limited public forum, as they are a valuable

part of a vibrant campus community. However, it has asked all members of the University

community to refrain from discriminating against and excluding its students on the basis of

protected class.

C. InterVarsity has wrongly framed the University’s justified regulatory actions as

an attack on religious groups.
InterVarsity has attempted to frame the University’s recent efforts to ensure RSO

compliance with its Human Rights Policy as an attack on religious organizations. InterVarsity

appears to argue that because a few of the student groups which were deregistered as part of the

University’s review of RSO constitutions were religious groups, the University has therefore

singled out religious groups for deregistration. In fact, the University reviewed all 513 student

groups as a part of its review of RSO constitutions. DSOF ¶ 46. Of the groups reviewed, 38 were

ultimately deregistered, and only eight of those were religious groups. SOF ¶ 14. The groups

deregistered as a result of their failure to submit documents demonstrating their intent to comply

with the University’s Human Rights Policy included an incredibly diverse set of organizations,

ranging from the Institution of Electrical and Electronic Engineers to the Revolution Dance

Company, to the Minority Association of Pre-Medical Students. Id. The University in no way

singled out religious groups in reviewing RSO constitutions or in making the decision to

deregister several noncompliant groups.

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III. The University of Iowa’s Application of Its Policy Was Both Reasonable and
Viewpoint Neutral.
In Martinez, the Supreme Court instructed that in the context of a student group asserting

violations of its free speech and association rights against public university, the plaintiff’s

expressive-association and free speech claims merge. 561 U.S. at 679–83. “Who speaks on its

behalf . . . colors what concept is conveyed. . .. It therefore makes little sense to treat CLS’s

speech and association claims a discrete. . .. Instead . . . our limited-public-forum precedents

supply the appropriate framework for assessing both CLS’s speech and association rights.” Id.

The Court goes on to explain its reasoning. Id.

First, “the same considerations that have led us to apply a less restrictive level of scrutiny

to speech in limited public forums as compared to other environments . . . apply with equal force

to expressive association occurring in limited public forums.” Id., citing Roberts v. U.S. Jaycees,

468 U.S. 609, 622 (1984) (“[W]e have long understood as implicit in the right to engage in

activities protected by the First Amendment a corresponding right to associate with others in

pursuit of a wide variety of political, social, economic, educational, religious, and cultural

ends.”). Second, “the strict scrutiny [the Court has] applied in some settings to laws that burden

expressive association would, in practical effect, invalidate a defining characteristic of limited

public forums—[that] the State may ‘reserv[e] [them] for certain groups.’” Martinez, 561 U.S. at

681. Free speech and association challenges must be addressed in the limited public forum

context, “lest strict scrutiny trump a public university’s ability to ‘confin[e] a [speech] forum to

the limited and legitimate purposes for which it was created.’” Id. Finally, as was the case with

CLS in Martinez, this case “fits comfortably within the limited public-forum category, for . . . in

seeking what is effectively a state subsidy, [InterVarsity] faces only indirect pressure to modify

its membership policies; [InterVarsity] may exclude any person for any reason if it forgoes the

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benefits of official recognition.” Id. at 682. Unlike the plaintiffs in many of the expressive

association precedents cited by Plaintiff here and in BLinC, InterVarsity has not been forced to

accept members it does not wish to admit. Here, the University of Iowa is “dangling the carrot of

subsidy, not wielding the stick of prohibition.” Id. at 683.

As such, it is appropriate here, as it was in Martinez, to evaluate Plaintiff’s free speech

and free association challenges using a limited public forum framework.

A. The University’s policy is reasonable.

1. The Registration of Student Organizations Policy expressly anticipates that

student groups will adhere to the Human Rights Policy.
Plaintiff argues that the University acted unreasonably by refusing to let InterVarsity

select leaders who affirm its beliefs without interference. Plfs. Memo, p. 10. Citing the

Registration of Student Organizations Policy, Plaintiff points to the “specific purpose” for which

the forum was purportedly formed. Id. citing SOF ¶¶ 20, 23. Plaintiff claims that the specific

purpose of the forum is to “encourage[] the formation of groups around the areas of interest of its

students.” Plfs. Memo, p. 10. However, as noted above, the limited public forum created by the

University serves a variety of purposes—not just to encourage the formation of groups of like-

minded students no matter the cost to the community. See supra § IIB. In addition to the

purposes which serve the University’s educational mission, the RSO governing documents

specifically state that organizations will be required to comply with state and local law, as well

as the full gamut of University policies:

It is the responsibility of each registered student organization to adhere to the

mission of this University, its supporting strategic plan, policies, and procedures.
Organizations must abide by all local, state, and federal laws. An organization’s
goals, objectives, and activities must not deviate from established University
policies and procedures.
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DSOF ¶ 14. The University’s decision to enforce state and federal civil rights laws

through implementation of its Human Rights Policy was reasonable in light of the

purposes of the forum and was expressly anticipated by the Registration of Student

Organizations document.

2. Martinez offers further guidance on reasonableness.

Plaintiff argues that Martinez does not apply here because its holding was limited to the

“all-comers” policy at issue in that case. Plfs. Memo, p.12. However, Defendants urge the Court

to use Martinez as a guide in evaluating all aspects of this dispute, as it provides a solid

framework for analyzing this and any other limited public forum case occurring in a public

university setting. While Martinez did not specifically address a policy identical to the one

discussed here, it does provide valuable guidance in analyzing the appropriateness of the

government’s regulation of a forum it has created for student speech.

In Martinez, the Supreme Court provided some guidance regarding what factors could

weigh on a determination of whether a University’s regulation of speech by student groups was

reasonable in light of the purposes of the forum. The Court indicated that Hastings’ all-comers

policy was undoubtedly reasonable, because it fulfilled the College’s equal access goals by

allowing all students to participate in the “leadership, educational, and social opportunities

afforded by [RSOs] . . ..” Martinez, 561 U.S. at 687–88. Significantly, the Court pointed out that

“Hastings does not allow its professors to host classes open only to those students with a certain

status or belief, so the Law School may decide, reasonably in our view, that the . . . educational

experience is best promoted when all participants in the forum must provide equal access to all

students.” Id. (internal quotations omitted). The University of Iowa shares a similar goal of

providing equal access to educational opportunity for all students in governing its forum for
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student groups, as demonstrated by its enforcement of a policy which protects students from

discrimination on the basis of protected characteristic. DSOF ¶¶1–3.

The Supreme Court also noted that Hasting’s policy, insofar as it brought together

individuals with diverse backgrounds and beliefs and “encourage[d] tolerance, cooperation, and

learning among students,” was reasonable. Id. at 659. Similarly, the University of Iowa wishes to

promote tolerance, cooperation, and learning among students. This goal is evidenced by its

support for more than 500 student groups which span the religious, social, and political

spectrum; its varying policy statements on diversity and religious inclusion; and its clear policy

statements set forth in its RSO governing documents. DSOF ¶¶ 1–10.

Finally, like the policy implemented by Hastings College of Law in Martinez, the

University of Iowa’s Human Rights Policy subsumes state and federal nondiscrimination laws.

Compare, Iowa Code Ch. 216 with DSOF ¶¶1–3. In Martinez, the Court determined that the fact

that the Law School’s policy echoed state nondiscrimination laws was evidence that the policy

was reasonable and reflective of the decision “to decline to subsidize with public monies and

benefits conduct of which the people of California disapprove.” Id. at 689–90.

Interestingly, the Supreme Court further determined that Hastings’ policy was

“creditworthy” due to the “substantial alternative channels for [CLS-student] communication to

take place.” Martinez, 561 U.S. at 690. Since the Court had determined that the regulations set

forth by Hastings were viewpoint neutral, and methods for communication by unrecognized

student groups were abundant, Hastings’ regulation was reasonable. Id. The Ninth Circuit made a

similar determination regarding San Diego State’s policy in Alpha Delta Chi-Delta Chapter v.

Reed. 648 F.3d 790, 799 (9th Cir. 1999). Here, the University of Iowa provides ample avenues

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for unregistered student organizations to communicate with its student body, and as such, its

policy is similarly “creditworthy.” DSOF ¶¶ 25–30.

B. The University’s policy is viewpoint neutral.

1. The University’s policy is facially neutral.

The University engages in viewpoint discrimination “when the rationale for its regulation

of speech is ‘the specific motivating ideology or the opinion or perspective of the speaker.’”

Gerlich v. Leath, 861 F.3d 697 (8th Cir. 2017), citing Rosenberger v. Rector & Visitors of Univ.

of Va.¸ 515 U.S. 819 (1995). Here, the rationale behind the University’s regulation of speech by

student groups is to protect the civil rights of University of Iowa students, not to silence a

particular group or ban a particular point of view. DSOF ¶ 1–10. InterVarsity argues that the

University’s policy is facially discriminatory because it “bans any ‘restriction on leadership

related to religious beliefs.” Plfs. Memo, P. 18. However, the statement Plaintiff points to as

evidence of viewpoint discrimination against religious groups is taken out of context. See SOF ¶

12. The statement was made by a CSIL staff member as part of a review of InterVarsity’s group

constitution, which specifically addresses religious belief. SOF ¶ 12. The University employee’s

language was general and referenced clauses which might contradict the Human Rights Policy in

relation to the “ability to become a member or to hold leadership positions.” SOF ¶ 191, DSOF

¶¶ 56–61. In replying, Ms. Schrock specifically addressed her concerns about restricting

leadership to Christian members. SOF ¶¶ 191–194. It was in response to her specific questions

about religion that the staff member’s language was narrowed to address her specific question

about discrimination on the basis of membership in a religious group.

InterVarsity’s strained argument does not change the fact that the University’s Policy is

viewpoint neutral on its face. See DSOF ¶ 1. In BLinC, this Court opined that “the [University’s]
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policy is clearly not aimed at any particular view, ideology, or opinion. The language is familiar,

essentially boilerplate language repeated in similar terms in civil and human rights codes

nationwide, including the Iowa Civil Rights Act and the Iowa City Human Rights Code.” See

BLinC v. The University of Iowa, et al., No. 17-cv-00080-SMR-SBJ (S.D. Iowa), Order Granting

Injunction filed January 23, 2018, p. 24. Even if the University’s facially neutral policy had a

disparate impact on religious groups, that impact would not preclude a finding that the policy is

viewpoint neutral as written. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). As

such, this Court should find that the University’s Human Rights Policy is facially neutral.

2. The University’s policy is neutral as-applied.

A determinative factor in this case in regard to many of Plaintiff’s claims is whether the

University applied its Human Rights Policy in a view-point neutral way. “A 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). Here, the University

has engaged in a uniform application of its policy to all registered student groups on campus. As

a result of the BLinC litigation, the University undertook a massive review of the constitutions of

all RSOs. DSOF ¶ 46. Starting in January and February of 2018, the University reviewed 513

RSO constitutions for compliance with the University’s Human Rights Policy. DSOF ¶ 46.

Fraternities and sororities were not included in the review at that time, due to complications with

their national and international charters, and their situation under the “Fraternity and Sorority

Life” regulatory umbrella rather than under the Center for Student Involvement and Leadership

(“CSIL”) umbrella. SOF ¶ 186.

Out of the 513 Student Organizations reviewed, 356 RSOs were determined to have an

incomplete or incorrect Human Rights Clause in their constitution. DSOF ¶ 47. Each of the
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RSOs which had an incomplete or incorrect clause received an email from CSIL staff requesting

that they include the entire clause. DSOF ¶ 48. By May 4, 2018, 201 revised constitutions had

been received. DSOF ¶ 49. The constitutions were reviewed by CSIL staff. DSOF ¶ 49.

Throughout the month of May, CSIL staff worked closely with student organization leaders to

assist them with making changes to their constitutions. DSOF ¶ 50. On June 1, 2018, the

University sent out another email to RSOs which had not yet submitted a corrected constitution.

DSOF ¶ 51. The email indicated that if RSOs did not submit a corrected constitution by June 15,

2018, those groups would be deregistered. DSOF ¶ 51. CSIL staff indicated, however, that

groups would be automatically reregistered once their constitutions had been approved. DSOF ¶

51. The email warned that language which contradicted the University’s Human Rights Policy

would need to be removed. DSOF ¶ 51. Once the June 15, 2018, deadline had passed, the

University deregistered 38 RSOs. DSOF ¶ 62. InterVarsity was one of the groups deregistered.

DSOF ¶61. As evidenced by the sweeping nature of this process and the uniformity with which

the policy was applied, the University has not engaged in viewpoint discrimination. Rather, the

University has implemented a neutral application of its rules to all campus RSOs.

There are a variety of fact questions in this case—one being whether the University

applied its policy equally to all organizations on campus. The fact that the parties have not

engaged in even limited discovery on these matters makes this case inappropriate for summary

judgment.

IV. The University of Iowa’s Policy Does Not Significantly Affect InterVarsity’s Ability
to Advocate Its Viewpoints, and as Such, Does Not Violate InterVarsity’s Right to
Free Association.
Should the Court decide to analyze InterVarsity’s associational claims separately from its

free speech claims, it should still deny Plaintiff’s Motion for Partial Summary Judgment.
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Although InterVarsity is likely an expressive association, its ability to advocate its viewpoints

has not been significantly affected by deregistration. While expressive associations are given a

significant degree of latitude in a public forum, InterVarsity exists within a limited public forum.

As outlined above, even expressive associations may be regulated when they exist within a

limited public forum created for the educational goals of a public University. See Martinez, 561

U.S. 680–683.

A. The University agrees that InterVarsity is an expressive association.

The University agrees that InterVarsity is likely an expressive association under the

precedents cited by Plaintiff. However, even an expressive association may be regulated when it

exists within a limited public forum created by a public university for the various purposes

outlined above, as long as the government’s regulation is reasonable and viewpoint neutral. See

Martinez¸ 561 U.S. 680–683. Here, the University’s regulation of InterVarsity’s speech was

reasonable in light of the purposes of the forum.

B. The University’s Policy does not significantly affect the group’s ability to
advocate its viewpoints.
Even if this Court determines that InterVarsity has applied the correct standard, Plaintiff

should not prevail on this point. Plaintiff cites Boy Scouts of America v. Dale for the applicable

standard. 530 U.S. 640, 641 (2000). 3 After determining that an organization is an expressive

association, Plaintiff argues, a court should consider whether the government restriction would

“significantly affect the [organization’s] ability to advocate public or private viewpoints.” Id.

3
The Martinez Court expressly considered whether to apply Dale in the context of associational rights at public
universities, and decided instead to proceed with a limited public forum analysis. 561 U.S. at 680.

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InterVarsity claims that its ability to advocate its viewpoints has been hindered because it

is being “forced” to accept onto its leadership team individuals who reject InterVarsity’s faith

and to propound a point of view which is contradictory to its beliefs. Plfs. Memo, p. 12–14.

However, Defendants’ reasonable regulation of InterVarsity’s right to free association does not

significantly affect the group’s ability to advocate its viewpoints. Like CLS in Martinez,

InterVarsity “forecast[s] that the policy will facilitate hostile takeovers; if organizations must

open their arms to all . . . saboteurs will infiltrate groups to subvert their mission and message.”

Martinez¸561 U.S. 692–93. Like the Martinez Court, Defendants find this argument to be “more

hypothetical than real.” Id. at 692, citing National Endowment for Arts v. Finley, 524 U.S. 569,

584 (1998) (“[W]e are reluctant . . . to invalidate legislation on the basis of its hypothetical

application to situations not before the Court.”). As the Court explained,

Students tend to self-sort and presumably will not endeavor en masse to join—let
alone seek leadership positions in—groups pursuing missions wholly at odds with
their personal beliefs. And if a rogue student intent on sabotaging an
organization’s objectives nevertheless attempted a takeover, the members of that
group would not likely elect her as an officer.
Martinez, 561 U.S. at 692–93. The same is true here. A brief review of InterVarsity’s

constitution makes clear the extent to which the group is centered around “growing in love for

God, God’s Word, God’s people . . . and God’s purposes in the World.” P. App. 1694. The

constitution includes a statement of purpose which outlines the group’s intention to “take a fresh

look at the life and message of Jesus” and to “help Christian grad students and faculty to grow

spiritually and live faithfully as they develop their gifts and talents for service in the world.” P.

App. 1995. The constitution also includes an extensive “Basis of Faith” statement which outlines

the group’s religious beliefs in detail. Id. A student who reviewed the constitution as written,

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even excluding provisions requiring an affirmation of the statement of faith, could not mistake

InterVarsity for a secular group.

Even if a student did not review InterVarsity’s constitution prior to attending an

InterVarsity event, upon arrival the student would quickly learn that InterVarsity is a Christian

group, and would have plenty of opportunities through interactions with group members to learn

about the group’s belief system. In her declaration, Katrina Schrock stated that “[t]he core

content of the monthly meetings is usually focused on the nexus between our Christian faith and

our academic studies. We explore the life and message of Jesus, discuss building relationships of

reconciliation, and learn about integrating faith, scholarship, and service.” P. App. 1982. The

group hosts “weekly prayer groups and Bible studies” as well as “monthly [worship] services.”

P. App. 1984. InterVarsity does good work in the community by organizing “religious outreach

opportunities.” P. App. 1984. The likelihood that a student who is repulsed by or aspires to live a

life counter to the values laid out in InterVarsity’s constitution would both join the group,

attempt to gain a leadership position, and then convince the entire leadership team, which likely

consists of Christians who agree with InterVarsity’s mission and purpose, to invite that person

into a leadership role, is very unlikely.

The University has not “forced” InterVarsity to do anything that contradicts its mission

and purpose. Rather, by refusing to change its policies, InterVarsity is choosing to forgo

government benefits in order to continue to operate free of regulation and enforcement of civil

rights laws by the University. This Court should deny Plaintiff’s Motion for Partial Summary

Judgment as a genuine issue of material fact has been generated on this issue.

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V. The University of Iowa’s Policy is Both Neutral and Generally Applicable, and Does
Not Violate InterVarsity’s Right to Free Exercise of Religion.
The First Amendment to the United States Constitution, in its Free Exercise Clause,

provides that “Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof.” U.S. Cost. Amend. 1. Plaintiff argues that the University violated

InterVarsity’s free exercise rights by regulating its selection of group leaders. Plfs. Memo, p. 10–

11. It is well-established that a government may regulate the conduct of religious groups—even

when the behavior is prescribed by the individual’s religion, as long as the regulation is a

“neutral law of general application.” See Employment Division, Oregon Department of Human

Resources v. Smith, 494 U.S. 872 (1990), superseded by statute as stated in Holt v. Hobbs, 135 S.

Ct. 853, 859–60 (2015). 4 “A law is one of neutrality and general applicability if it does not aim

to ‘infringe upon or restrict practices because of their religious motivation,’ and if it does not ‘in

a selective manner impose burdens only on conduct motivated by religious belief[.]’” San Jose

Christian College v. City of Morgan Hill, 360 F.3d 1024, 1030 (9th Cir. 2004), quoting Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993). Here, the

University’s regulation of InterVarsity’s leadership selection process does not aim to infringe on

practices because of their religious motivation, and does not impose burdens only on conduct

motivated by religious belief. All student groups are expected to abide by the Human Rights

Policy, not just religious groups.

4
In Holt, the Supreme Court outlined the requirements of the Religious Freedom Restoration Act (“RFRA”), which
Congress enacted relying on Section 5 of the Fourteenth Amendment for authority, requires that “[g]overnment shall
not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,
unless the government demonstrates that the application of the burden to the person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental
interest.” Id., citing 42 U.S.C. §§ 2000bb-1(a), (b). The Court held that RFRA exceeded Congress’ powers under
that provision in City of Boerne v. Flores, 521 U.S. 507 (1997). As a response to City of Boerne¸ Congress enacted
RLUIPA, which limits government regulation of religious exercise by institutionalized persons. See Holt, 135 S. Ct.
at 859–60. As such, the standard which applies in this case is the standard which permits government regulation of
religious exercise by a neutral law of general applicability. See Smith, 494 U.S. at 878–82.
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Further, even when the burden on religious practice by a neutral law of general

applicability is substantial, the government need not demonstrate a compelling interest. San Jose

Christian College, 360 F.3d at 1030. If a law is not neutral—here, if it discriminates against

religiously motivated conduct—or is not generally applicable, strict scrutiny applies and the

government interest must be narrowly tailored to advance a compelling government interest in

order to survive. Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 532. Even if the Court

determines that the University’s policy was not generally applicable to all RSOs, the University

can demonstrate a compelling interest. Here, the University’s goals for its forum are compelling:

providing a safe environment for a great diversity of student voices, free of discrimination on the

basis of protected characteristic, while allowing all students equal access to the public education

for which they—and Iowa taxpayers—have paid. The United States Supreme Court has

University goals related to the development of a diverse student body to be compelling in its

rulings on affirmative action cases. See, e.g.¸ Regents of the University of California v. Bakke,

438 U.S. 265, 311 (1978) (holding that the development of a diverse student body was a

compelling government interest); Grutter v. Bollinger, 539 U.S. 306, 328–29 (2003) (holding

that a law school’s interest in attaining a diverse student body in order to fulfill its educational

mission was compelling).

The University has tailored its application of the Human Rights Policy as narrowly as

possible, in that it permits organizations to express their missions, goals, and beliefs in through

their group constitutions and permits like-minded students to gather around any issue. All that

the University asks is that students are not excluded from any group on the basis of protected

characteristic. If a group chooses not to comply with the University’s Policy, it is simply

deregistered—not disbanded entirely.

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In Smith, the Supreme Court outlined the many cases in which plaintiff religious groups

have attempted to justify their violation of the law by pointing to their sincerely held religious

beliefs. See Smith, 494 U.S. at 878–82. The Smith Court held: “[w]e have never held that an

individual’s religious beliefs excuse him from compliance with an otherwise valid law

prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a

century of our free exercise jurisprudence contradicts that proposition.” Id., citing United States

v. Lee, 455 U.S. 252, 263 n. 3 (1982) (nonpayment of taxes); Prince v. Massachusetts, 321 U.S.

158 (1944) (failure to comply with labor laws); Braunfeld v. Brown, 366 U.S. 599 (1961)

(Sunday-closing laws); Gillette v. United States, 401 U.S. 437, 461 (1971) (conscription of

individuals opposed to a particular war on religious grounds). The Court noted that

[t]he only decisions in which we have held that the First Amendment bars
application of a neutral, generally applicable law to religiously motivated action
have involved not the Free Exercise Clause alone, but the Free Exercise Clause in
conjunction with other constitutional protections such as freedom of speech and
of the press . . . or the rights of parents. . .. Some of our cases prohibiting
compelled expression, decided exclusively upon free speech grounds, have also
involved freedom of religion . . ..
Smith, 494 U.S. at 881–82, citing Cantwell v. Connecticut, 310 U.S. 296 (1940); Murdock v.

Pennsylvania, 319 U.S. 105 (1943); Follett v. McCormick, 321 U.S. 573 (1944); Pierce v.

Society of Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205 (1972); Wooley v.

Maynard, 430 U.S. 705 (1977); West Virginia Bd. of Education v. Barnette, 319 U.S. 624 (1943).

Notably, none of the cases cited by the Court in which a successful religious exercise claim has

been brought include as plaintiff a religious student group which has chosen to register on

campus in order to receive state money and other government benefits from a public University.

In Christian Legal Soc. Chapter of University of California v. Kane, the U.S. District

Court for the Northern District of California rejected plaintiff CLS’s Free Exercise claim and its

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assertion that strict scrutiny should be applied in analyzing the college’s nondiscrimination

policy, on the defendant Hastings’ summary judgment motion, holding that the policy “does not

target or single out religious beliefs, but rather, is a policy that is neutral and of general

applicability.” No. C 04-04484 JSW, 2006 WL 997217, at *1–4 (N.D. Cal. May 19, 2006). The

Hastings’ policy, like the policy maintained by the University of Iowa, “prohibits discrimination

on the basis of protected categories, including religion and sexual orientation.” Id. at *24.

Importantly, the Court held that

Contrary to CLS’s contention, regulating the conduct of discrimination on the

basis, inter alia, of religion is not equivalent to regulating religious beliefs. CLS
may be motivated by its religious beliefs to exclude students based on their
religion or sexual orientation, but that does not convert the reason for Hastings’
policy prohibiting the discrimination to be one that is religiously-based.
Id. Like CLS, InterVarsity has failed to submit any evidence of the University’s discriminatory

intent in this case, instead focusing almost exclusively on the University’s decision to permit

fraternities, sororities, sports teams, and groups and programs meant to assist historically groups

which have been historically discriminated against to exist on campus. See id. at 27 (“CLS also

argues that the treatment of CLS was intentional and argues that CLS may rely on evidence of

the circumstances surrounding the passage of the policy to demonstrate intentional

discrimination against it. Yet, CLS does not submit any evidence with respect to the passage of

the Nondiscrimination Policy. Nor does CLS present any other evidence demonstrating any

discriminatory intent by Hastings.”).

To successfully defend a religions exercise claim, Defendants must demonstrate that the

University’s Policy is both neutral and generally applicable. See Smith, 494 U.S. at 872,

superseded by statute as stated in Hobbs, 135 S. Ct. at 859–60.

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A. The University’s Policy is neutral.

Plaintiff argues that the University’s “new interpretation of its policy is facially

discriminatory.” Plfs. Memo, p. 18. Defendants disagree and reassert their position that their

application of the University’s Human Rights Policy is both facially neutral and neutral as-

applied. See supra III(B)(1)–(2).

B. The University’s policy is generally applicable.

Here, Plaintiff provides three reasons why it believes the University’s Policy is not

generally applicable: 1) it was not enforced equally by the University; 2) the University has

“categorically exempted a huge swath of student organizations from the reach of the policy”; and

3) it “silently approves” secular discrimination by banning “restriction[s] on leadership related to

religious beliefs while allowing groups to restrict leadership around all sorts of other ideological

and political beliefs.” Plfs. Memo, p. 14–19.

1. Equal enforcement and “categorical exemptions”

Defendants see no real difference between Plaintiff’s first and second points. Plaintiff

claims that the exemptions the University has provided for certain groups are evidence that the

University has discriminated against it and other religious groups in its application of its Human

Rights Policy. The University maintains that the exemptions it grants, for example to sports

clubs, sororities and fraternities, and in the administration of scholarship and programs which

benefit historically disadvantaged groups, all serve the specific purposes of its limited public

forum and educational mission, and as such are justified. Encouraging the development of a

community which includes a “rich diversity of people” is necessary for fulfilling the University’s

educational mission. For example, one way to create an inviting community for racial and ethnic

minorities in a state like Iowa, which is made up mostly of Caucasians, is to facilitate programs
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(such as Iowa Edge) which welcome, encourage, and support people of color when they decide

to attend the University of Iowa. 5 Providing a safe environment for all students is an important

purpose of the forum.

Fraternities and sororities, while they have historically been exempted from the

regulatory process, will now be required to submit governing documents to the University which

will be reviewed for compliance with the Human Rights Policy. SOF ¶ 186. Certain groups

which are exempt under federal laws like Title IX, which permits separate sports teams and

housing options for men and women, will continue to be permitted to exclude opposite-sex

individuals under the policy. Id., see also 34 C.F.R. § 106.32 (permitting sex-segregated

housing); 34 C.F.R. § 106.41 (permitting sex-segregated sports teams); 20 USC § 1681

(excepting tax exempt social fraternities or social sororities and various clubs and youth service

organizations which have traditionally been limited to persons of one sex); Iowa Code Ch. 216.9

(exempting separate “toilet facilities, locker rooms, or living facilities for the different sexes so

long as comparable facilities are provided”).

2. Silent approval of discrimination.

InterVarsity goes on to complain that the policy is not generally applicable because it has

not been equally enforced even among various religious groups on campus, and thus “silently

discriminates” against religious groups. This is simply not the case, as evidenced by the

University’s deregistration of many groups which are not religiously affiliated for their failure to

comply with the terms of the Human Rights Policy. SOF ¶ 14; DSOF ¶ 62. At this time,

InterVarsity and other religious groups have been reinstated as RSOs in good standing and may

5
See United States Census Bureau, QuickFacts Iowa, https://www.census.gov/quickfacts/ia (last accessed January
11, 2019) (noting that according to the latest census data, 91.1% of Iowa’s population is “white”).

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participate in all campus activities and conduct business as usual. No review of religious groups

is ongoing, as review has been suspended pending the outcome of the BLinC litigation.

Plaintiff’s reference to Defendants’ arguments regarding its complaint-driven enforcement of the

Human Rights Policy in BLinC is irrelevant here, as Defendant engaged in an entirely new

review of all student group constitutions and the enforcement of the policy against InterVarsity

was not complaint-driven.

At the very least, Defendants have generated a fact question on the issue of whether its

exemptions for fraternities, sororities, and sports clubs are justified in that they serve the

purposes for which its limited public forum was created. As such, the Court should deny

Plaintiff’s Motion for Partial Summary Judgment on this issue.

VI. The Ministerial Exception Does Not Apply.

A. The University must regulate membership and leadership requirements for

campus religious groups that elect to receive government funding and resources.
InterVarsity cites Hosanna-Tabor Evangelical Lutheran School v. EEOC for the

proposition that the government may not restrict a religious groups’ selection of its leaders. See

565 U.S. 171 (2012). In Hosanna-Tabor, the U.S. Supreme Court held that the First Amendment

bars lawsuits brought by ministers against their churches for violations of employment

discrimination laws. Id. Unlike the case at hand, Hosanna-Tabor involved a private religious

group which was not the recipient of any sort of state funding or benefits. See id. The case

involved a conflict over a church employee who believed she had been discriminated against on

the basis of disability. Id. at 180–81. The Court ultimately determined that the Religion Clauses

of the First Amendment “bar the government from interfering with the decision of a religious

group to fire one of its ministers.” Id. at 181. Hosanna-Tabor is easily distinguishable from the

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case at hand, as the church involved was not receiving public money and did not exist within the

confines of a limited public forum on a public University campus. As such, the government had

less interest in regulating the group’s speech and less authority to do so.

As Justice Stevens pointed out in his concurrence in Martinez, “[a]lthough the First

Amendment may protect [a religious group’s] discriminatory practices off campus, it does not

require a public university to validate or support them.” Martinez, 561 U.S. 699, Stevens, J.,

concurring. Though a religious group’s right to select its leaders is undoubtedly protected by the

First Amendment in a public forum, InterVarsity has chosen to exist within the “special

characteristics of the school environment” and must therefore comply with the University’s

reasonable regulation of that forum. Id., quoting Widmar v. Vincent, 454 U.S. 263, 268 (1981).

Other cases addressing the ministerial exception likewise involve employment disputes within

private churches not being subsidized with public funds and do not apply. See, e.g., Lee v. Sixth

Mount Zion Baptist Church, 903 F.3d 113 (3d Cir. 2018).

VII. Permanent Injunctive Relief

A. No injunction is necessary at this time.

Defendants have suspended all review of religious student group constitutions until such

time as the Court has ruled on the pending summary judgment motion in BLinC v. University of

Iowa, et al. At this time, InterVarsity is in good standing with the University and may participate

freely in all campus activities and conduct its regular business. There is currently no threat of

irreparable harm to InterVarsity or any similar group. Watkins Inc. v. Lewis, 346 F.3d 841, 844

(8th Cir. 2003) (“Failure to show irreparable harm is an independently sufficient ground upon

which to deny a preliminary injunction.”). Defendants ask the Court to deny Plaintiff’s motion

for permanent injunctive relief.

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CONCLUSION
Defendants have made a good-faith effort to seamlessly apply their Human Rights Policy

to over 500 campus groups representing a myriad of social, political, religious, and cultural

backgrounds. This has been a difficult task given the complexities inherent in this rapidly-

developing area of law. Any actions the University has taken in reviewing and deregistering

campus groups have been done not out of a discriminatory animus for religious groups, but

rather, to maintain a forum where diversity and inclusion are valued and where all members of

the University community have equal access to the educational opportunities for which they, and

the people of the State of Iowa, have paid. Defendants urge the Court to deny Plaintiff’s Motion

for Partial Summary Judgment.

THOMAS J. MILLER
Attorney General of Iowa

/s/GEORGE A. CARROLL
George A. Carroll
Assistant Attorney General
Hoover Building, Second Floor
1305 East Walnut Street
Des Moines, Iowa 50319
PHONE: (515) 281-8583
FAX: (515) 281-7219
E-MAIL: George.carroll@ag.iowa.gov
ATTORNEYS FOR DEFENDANTS
Original filed electronically.
Copy electronically served on all parties of record.

PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was served upon
each of the persons identified as receiving a copy by delivery in the
following manner on January 15, 2019:

U.S. Mail FAX

Hand Delivery Overnight Courier
Federal Express Other
ECF System Participant (Electronic Service)

Signature: /s/Betty Christensen

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