The School of the Ozarks, Inc. v. Joseph Biden, Jr., No. 21-2270 (8th Cir. 2022)

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Justia Opinion Summary

College of the Ozarks, a private Christian college in Missouri, brought this action to challenge the lawfulness of a memorandum issued by an acting assistant secretary of the United States Department of Housing and Urban Development. The College moved for a temporary restraining order and preliminary injunction. The district court ruled that the College lacked standing to establish a case or controversy and dismissed the action for lack of jurisdiction. The College appealed and the Eighth Circuit affirmed.
The court explained that the College’s alleged injury is too speculative to establish Article III standing. The College, in effect, asked the court to assume that the following series of events is imminent: a sex-discrimination complaint will be filed against the College based on claims involving sexual orientation or gender identity; following an investigation, HUD will charge the College with sex discrimination, even though HUD has never enforced the Fair Housing Act’s sex-discrimination prohibition against a college whose housing policies have been exempted from the prohibition on sex discrimination under Title IX; HUD will determine, pursuant to the Memorandum, that the College is not entitled to an exemption under the Religious Freedom Restoration Act or the Free Exercise Clause as discussed in Bostock; and the College will therefore be subject to penalties. This is the kind of “highly attenuated chain of possibilities” that “does not satisfy the requirement that threatened injury must be certainly impending.” Further, the court explained that the complaint thus fails to allege either an actual chilling of speech or a credible threat of enforcement that justifies self-censorship.

Court Description: [Colloton, Author, with Grasz and Kobes, Circuit Judges] Civil case - Fair Housing Act. The School challenges a 2021 HUD regulation forbidding discrimination because of sexual orientation and gender identity; the School prohibits male and females who identify as the other gender from living in a dormitory consistent with their claimed sexual identity; the School brought this action alleging the regulation violated the APA, the First Amendment, the Appointments Clause and the Religious Freedom Restoration Act and seeking to enjoin its enforcement; the district court dismissed for lack of standing. Held; the School has not suffered an injury in fact because the regulation does nothing more than direct the Office of Fair Housing and Equal Opportunity to accept and investigate claims of sexual discrimination based on gender identity or sexual orientation and it is speculative that the Office will file a charge of discrimination against the School; the School's free-speech theory of standing fails for essentially the same reasons - the School has not shown that there is a credible threat that the defendants will enforce the Fair Housing Act against the institution based on its religiously-based housing policies; no facts were pleaded to support the School's contentions that its speech was chilled; finally, even if the School has suffered an injury in fact, it has failed to show that a favorable judicial decision would redress its injury. Judge Grasz, dissenting.

Primary Holding

The Eighth Circuit affirmed the district court’s ruling that the College of the Ozarks lacked standing to establish a case or controversy in their action to challenge the lawfulness of a memorandum issued by an acting assistant secretary of the United States Department of Housing and Urban Development.

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