Supreme Court Denies Review in Christian College's Challenge to Fair Housing Act Enforcement

The U.S. Supreme Court yesterday denied review in The School of the Ozarks v. Biden, (Docket No. 22-816, certiorari denied, 6/20/2023). (Order List). In the case, the U.S. 8th Circuit Court of Appeals held in a 2-1 decision that a Christian college lacks standing to challenge a memorandum issued by an acting assistant secretary of the U.S. Department of Housing and Urban Development. The memorandum directs the HUD office that enforces the Fair Housing Act to investigate all discrimination complaints, including discrimination on the basis of sexual orientation or gender identity. The school's religiously-inspired Code of Conduct specifies that biological sex determines a person's gender. The school maintains single-sex residence halls and does not permit transgender individuals to live in residence halls that do not match their biological sex. (See prior posting.)

8th Circuit: Christian School Lacks Standing To Challenge HUD Memo On Sex Discrimination In Housing

 In The School of the Ozarks, Inc. v. Biden, (8th Cir., July 27, 2022), the U.S. 8th Circuit Court of Appeals held in a 2-1 decision that a Christian college lacks standing to challenge a memorandum issued by an acting assistant secretary of the U.S. Department of Housing and Urban Development. The memorandum directs the HUD office that enforces the Fair Housing Act to investigate all discrimination complaints, including discrimination on the basis of sexual orientation or gender identity. The school's religiously-inspired Code of Conduct specifies that biological sex determines a person's gender. The school maintains single-sex residence halls and does not permit transgender individuals to live in residence halls that do not match their biological sex. The majority said in part:

The Memorandum does not, as the College presupposes, require that HUD reach the specific enforcement decision that the College’s current housing policies violate federal law. The Memorandum, for example, says nothing of how the Religious Freedom Restoration Act or the Free Exercise Clause may limit enforcement of the Fair Housing Act’s prohibition on sex discrimination as applied to the College....

The College’s alleged injury also lacks imminence because it is speculative that HUD will file a charge of discrimination against the College in the first place.... [T]he agency has never filed such a charge against a college for sex discrimination based on a housing policy that is specifically exempted from the prohibition on sex discrimination in education under Title IX....

Judge Grasz dissented, arguing in part that the school has already suffered an injury-- the right to notice and comment on proposed rules. He said: "In my view, HUD’s Memorandum is an interpretative rule."

College Seeks Injunction Pending Appeal To 8th Circuit In Suit Against HUD's Transgender Policy On Student Housing

In February of this year, the Department of Housing and Urban Development issued a Directive interpreting the Fair Housing Act as barring discrimination on the basis of sexual orientation or gender identity. This meant, among other things, that colleges could not discriminate against transgender individuals in access to student housing. College of the Ozarks filed suit challenging the Directive as a violation of its religious freedom rights. (See prior posting.) A Missouri federal district court refused to issue a TRO or a preliminary injunction, denied an injunction pending appeal, and dismissed the case as non-justiciable on the ground that the Directive is a non-binding policy statement.  Now the College has filed a motion with the U.S. 8th Circuit Court of Appeals seeking an injunction pending appeal. The School of the Ozarks, Inc. v. Biden, (8th Cir., filed 6/11/2021). (Full text of memorandum in support of the motion.) ADF issued a press release announcing the filing of the motion.

Court Denies Injunction Against HUD's Fair Housing Act Interpretation Of Sex Discrimination

According to the Springfield News-Leader, after a 2½-hour hearing on Wednesday, a Missouri federal district court judge refused to issue a temporary restraining order or preliminary injunction against enforcement of a Department of Housing and Urban Development Directive interpreting the Fair Housing Act as barring discrimination on the basis of sexual orientation or gender identity. The challenge was brought by College of the Ozarks, a Christian college that objects to housing transgender females in women's dormitories. (See prior posting.) The judge said that enjoining HUD would not protect the school from liability in a suit by a student who alleges  discrimination.