Sch. of the Ozarks, Inc. v. Biden

• Decision Date: 27 July 2022
• Docket Number: 21-2270
• Citation: 41 F.4th 992
• Parties: The SCHOOL OF THE OZARKS, INC., doing business as College of the Ozarks, Plaintiff - Appellant, v. Joseph R. BIDEN, Jr., in his official capacity as President of the United States; U.S. Department of Housing and Urban Development ; Marcia L. Fudge, in her official capacity as Secretary of the U.S. Department of Housing and Urban Development; Demetria L. McCain, in her official capacity as Principal Deputy Assistant Secretary for Fair Housing & Equal Opportunity of the U.S. Department of Housing and Urban Development, Defendants - Appellees. Institute for Faith and Family ; America First Legal Foundation ; Mountain States Legal Foundation; State of Missouri; State of Alabama ; State of Arkansas ; State of Indiana; State of Kansas; State of Kentucky; State of Louisiana; State of Montana; State of Nebraska; State of South Carolina; State of Tennessee; State of Texas; State of Utah; State of West Virginia; Hannibal-LaGrange University ; Missouri Baptist University; Southwest Baptist University; Christian Life Commission of the Missouri Baptist Convention, Amici on Behalf of Appellant(s).
• Court: U.S. Court of Appeals — Eighth Circuit

41 F.4th 992

The SCHOOL OF THE OZARKS, INC., doing business as College of the Ozarks, Plaintiff - Appellant,

v. Joseph R. BIDEN, Jr., in his official capacity as President of the United States; U.S. Department of Housing and Urban Development ; Marcia L. Fudge, in her official capacity as Secretary of the U.S. Department of Housing and Urban Development; Demetria L. McCain, in her official capacity as Principal Deputy Assistant Secretary for Fair Housing & Equal Opportunity of the U.S. Department of Housing and Urban Development,¹ Defendants - Appellees.Institute for Faith and Family ; America First Legal Foundation ; Mountain States Legal Foundation; State of Missouri; State of Alabama ; State of Arkansas ; State of Indiana; State of Kansas; State of Kentucky; State of Louisiana; State of Montana; State of Nebraska; State of South Carolina; State of Tennessee; State of Texas; State of Utah; State of West Virginia; Hannibal-LaGrange University ; Missouri Baptist University; Southwest Baptist University; Christian Life Commission of the Missouri Baptist Convention, Amici on Behalf of Appellant(s).

No. 21-2270

United States Court of Appeals, Eighth Circuit.

Submitted: November 17, 2021

Filed: July 27, 2022

Ryan Lee Bangert, Julie Marie Blake, Alliance Defending Freedom, Lansdowne, VA, Matthew Scott Bowman, John J. Bursch, Alliance Defending Freedom, Washington, DC, Greggory R. Walters, Alliance Defending Freedom, Scottsdale, AZ, for Plaintiff-Appellant.

James C. Luh, U.S. Department of Justice, Washington, DC, Stephanie Robin Marcus, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Serena M. Orloff, U.S. Department of Justice, Civil Division, Washington, DC, Charles W. Scarborough, Appellate Section, Washington, DC, Charles Mark Thomas, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO, for Defendants-Appellees.

Deborah Jane Dewart, Deborah J. Dewart, Attorney at Law, Hubert, NC, Tami Fitzgerald, Institute for Faith and Family, Raleigh, NC, Amicus on Behalf of Appellant(s) Institute for Faith and Family.

Gene Patrick Hamilton, America First Legal Foundation, Washington, DC, for Amicus on Behalf of Appellant(s) America First Legal Foundation.

Tyler Martinez, National Taxpayers Union Foundation, Washington, DC, for Amicus on Behalf of Appellant(s) Mountain States Legal Foundation.

Dean John Sauer, Attorney General's Office, Jefferson City, MO, Michael E. Talent, Deputy Solicitor, Attorney General's Office, Saint Louis, MO, for Amici on Behalf of Appellant(s) State of Missouri, State of Alabama, State of Arkansas, State of Indiana, State of Kansas, State of Kentucky, State of Louisiana, State of Montana, State of Nebraska, State of South Carolina, State of Tennessee, State of Texas, State of Utah, State of West Virginia.

Jonathan R. Whitehead, Michael Kenneth Whitehead, Whitehead Law Office, Lee's Summit, MO, for Amici on Behalf of Appellant(s) Hannibal-LaGrange University, Missouri Baptist University, Southwest Baptist University, Christian Life Commission of the Missouri Baptist Convention.

Before COLLOTON, GRASZ, and KOBES, Circuit Judges.

COLLOTON, Circuit Judge.

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 court² ruled that the College lacked standing to establish a case or controversy and dismissed the action for lack of jurisdiction. The College appeals, and we affirm.

I.

On June 15, 2020, the Supreme Court decided Bostock v. Clayton County , ––– U.S. ––––, 140 S. Ct. 1731, 207 L.Ed.2d 218 (2020), concerning Title VII of the Civil Rights Act of 1964. Bostock held that the statute's prohibition on employment discrimination "because of sex" encompasses discrimination on the basis of sexual orientation and gender identity. Id. at 1741.

The Fair Housing Act, at issue in this appeal, makes it unlawful for certain persons and entities to "make unavailable or deny" a dwelling "because of ... sex." 42 U.S.C. § 3604(a). In January 2021, President Biden issued Executive Order No. 13,988, which states that "[u]nder Bostock ’s reasoning, laws that prohibit sex discrimination—including ... the Fair Housing Act ... prohibit discrimination on the basis of gender identity or sexual orientation."

The following month, the Acting Assistant Secretary for Fair Housing and Equal Opportunity in the Department of Housing and Urban Development issued a memorandum to implement the Executive Order. The Memorandum is addressed to the Department's Office of Fair Housing and Equal Opportunity, as well as state and local agencies and private organizations that administer and receive funds through certain programs of the Department. The document explains that the Office of General Counsel for the Department "has concluded that the Fair Housing Act's sex discrimination provisions are comparable to those of Title VII and that they likewise prohibit discrimination because of sexual orientation and gender identity."

The Memorandum directs the Office of Fair Housing and Equal Opportunity—the HUD office that enforces the Fair Housing Act—to "accept for filing and investigate all complaints of sex discrimination, including discrimination because of gender identity or sexual orientation." The document's stated purpose is to direct the Office to "fully enforce the Fair Housing Act" because discrimination based on sexual orientation and gender identity "is real and urgently requires enforcement action."

The Memorandum explained that over the previous ten years, HUD interpreted the Fair Housing Act to prohibit discrimination on the basis of gender identity and sexual orientation when the discrimination was motivated by perceived nonconformity with gender stereotypes.³ Yet the Memorandum concluded that this "limited enforcement" was "insufficient to satisfy the Act's purpose" and was "inconsistent" with the broader rationale of Bostock . Hence, the Department's leadership issued this new directive "to fully enforce" the Act's prohibitions against discrimination based on sex, including sexual orientation and gender identity. The Memorandum addresses discrimination in housing across the entire economy, and does not specifically address the subject of housing for students at colleges and universities.

College of the Ozarks is a Christian undergraduate institution in Missouri. The College admits students of any religion, but all students must agree to follow the College's religiously-inspired code of conduct. As stated in that code, the College teaches that biological sex is a person's "God-given, objective gender, whether or not it differs from their internal sense of ‘gender identity.’ " The code also states that "sexual relations are for the purpose of the procreation of human life and the uniting and strengthening of the marital bond in self-giving love, purposes that are to be achieved solely through heterosexual relationships in marriage." In accordance with these beliefs, the College maintains single-sex residence halls and does not allow members of one sex to visit the "living areas" of members of the opposite sex. The College therefore prohibits biological males who "identify" as females from living in female dormitories, and vice-versa. The College regularly communicates its housing policies to current and prospective students through a student handbook, an online virtual tour, the school website, and in-person recruitment events.

Allegedly fearing that its housing policies are now unlawful under the Memorandum's interpretation of the Fair Housing Act, the College sued President Biden, the Department of HUD, the Secretary of HUD, and the Acting Assistant Secretary, seeking pre-enforcement review of the Memorandum. The complaint alleged that the Memorandum, among other things, violates the Administrative Procedure Act, the First Amendment's Free Speech and Free Exercise Clauses, the Appointments Clause of Article II of the Constitution, and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

The complaint sought injunctive and declaratory relief. Specifically, it asked the district court to "set aside" the Memorandum and issue an injunction against enforcement of the Memorandum by the defendant officials. The complaint sought, among other forms of relief, a declaration that the Fair Housing Act and the implementing regulations do not prohibit discrimination based on sexual orientation or gender identity. The College moved for a temporary restraining order and preliminary injunction.

The district court concluded that it lacked jurisdiction because the College failed to establish Article III standing. The court determined that any alleged injury is not concrete because the College did not show that the Memorandum imposed restrictions on private housing providers such as the College. The court further reasoned that any injury was not caused by the Memorandum because the internal directive does not modify the College's rights or obligations under the Fair Housing Act. The court also concluded that any judicial remedy would not redress any alleged injury because any liability that the College incurs for violating the Fair Housing Act "would flow directly from the Act itself, as well as applicable case law including Bostock , and not from the Memorandum." The College appeals, and we review the district court's decision de novo .

II.

"No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation and alteration omitted). To establish Article III standing, a party invoking federal jurisdiction...