Coming Now: Abolishing Qualified Immunity for Everyone But Killer Cops

A few weeks ago, I flagged remarks from Justice Thomas raising the prospect that the Supreme Court might get rid of qualified immunity for everyone but abusive police officers. Justice Thomas' rationale was that police officers have to make "split-second decisions" and so should receive more deference from courts, whereas, say, college administrators "have time to make calculated choices" regarding the policies they impose and so perhaps should be held to a stricter standard.

It is of absolutely no surprise to me to see the Eighth Circuit become (to my knowledge) the first court to race through the door Justice Thomas opened, in a case concerning the University of Iowa's application of non-discrimination policies to religious student organizations, in a context where that meant a Christian student group (InterVarsity) could not deny a leadership position to an individual who refused to affirm that same-sex relationships were against the Bible. Denying qualified immunity, the panel wrote:

We acknowledge that the intersection of the First Amendment and antidiscrimination principles can present challenging questions. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1732 (2018) (noting that the conflict between Colorado’s anti-discrimination law and a baker’s First Amendment rights created “issues [] difficult to resolve”). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). And, if applied properly, it protects “all but the plainly incompetent or those who knowingly violate the law.” Id. (citation omitted). 

But as Justice Thomas asked in Hoggard v. Rhodes, “why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?” __ S.Ct. __, *1 (2021) (Thomas, J., statement regarding denial of certiorari). What the University did here was clearly unconstitutional. It targeted religious groups for differential treatment under the Human Rights Policy—while carving out exemptions and ignoring other violative groups with missions they presumably supported. 

Way to get off the blocks quickly, Eighth Circuit!

I'd note that, while I don't think the court's decision in this case is clearly incorrect under governing precedent, I also don't think it is as "clear" as the court suggests. The court relied heavily on the fact that the university approved another student Christian group (LoveWorks) which required leaders to affirm support for gay relationships, claiming that such a requirement "violates the [university's] Human Rights Policy just as much as" InterVarsity's anti-gay requirement. But, at least as I read the record (and it is a bit murky as presented in the opinion), that isn't necessarily true.

If the university purported to deregister InterVarsity because no student organization could require a religious statement of faith as a leadership prerequisite, then I agree allowing LoveWorks' statement of faith but not InterVarsity's is viewpoint discrimination. But it seems that InterVarsity was deregistered not because statement-of-faith requirements were always banned, but because InterVarsity's statement violated the university's Human Rights Policy because it "effectively disqualif[ied] individuals from leadership positions on the basis of sexual orientation and gender identity." LoveWorks' statement, by contrast, obviously does not disqualify individuals from leadership on basis of sexual orientation, nor  does it appear to disqualify individuals along any other characteristic protected by the Human Rights Policy. So if Iowa's Human Rights Policy is itself considered viewpoint neutral -- and the panel agreed it was -- then the university's different treatment of LoveWorks and InterVarsity may not be viewpoint discrimination but rather a product of just correctly enforcing the policy.

This observation doesn't necessarily end the story in the university's favor -- there is some evidence of targeting religious groups for heavier university scrutiny, and the manner in which the university decided how to interpret the Human Rights Policy's requirements differently for different sorts of organizations may run afoul of the Supreme Court's new "most-favored-nation" doctrine regarding religious exemptions to generally applicable rules. As I said, the record seems a bit murky and I'm not sure that the ultimate decision against the university is wrong here under the prevailing precedents. 

But when I warned that the potential two-tracking of qualified immunity doctrine -- keeping it "for police officers using violent force, but abolish[ing] it for public university officials contending with the judiciary's rapidly evolving and often seemingly arbitrary campus free speech jurisprudence" -- this is very much the sort of case I had in mind. The intersections of free speech and anti-discrimination doctrine are indeed a nettlesome subject, no matter how much courts pretend they are easy, and university administrators are going to make some wrong calls whether they have time to "calculate" or not.