"The sword has not yet fallen": Is Administrative Guidance Jeopardizing Constitutional Rights?

• Author: Hausman, C. Claire

1. INTRODUCTION

   The Office of Fair Housing and Equal Opportunity ("FHEO") has a duty to investigate sex-based discrimination in housing. (1) In accordance with recent Supreme Court precedent--which held that Title VII's prohibition on "sex" discrimination necessarily includes discrimination on the basis of gender identity and sexual orientation--FHEo broadened its definition of sex-based discrimination in an internal memorandum published February 11, 2021. (2) This memorandum directed officers to investigate discrimination in housing based on gender identity and sexual orientation. (3) The change unnerved a private Christian college, College of the Ozarks, located in Missouri. (4) Fearing that this internal memorandum threatened its ability to place students in dorms based on their biological sex, the school sued the U.S. Department of Housing and Urban Development ("HUD") and the Biden administration, claiming its constitutional rights were abridged. (5) The district court found, and the Eighth Circuit affirmed, that College of the Ozarks lacked standing to bring the suit against the defendants. (6)

   College of the Ozarks' Title IX exempt status created an unsurpassable bar for the court, which concluded that the college's injury was not imminent. (7) It was unclear whether HUD would enforce this memorandum against the college, and thus, the college's injury was too speculative. (8) This holding effectively requires the college to wait until it is adequately injured and its constitutional rights abridged to bring suit. (9) The court's reasoning is contrary to the policy considerations underlying the standing doctrine, as it prolongs the plaintiff's injury under the mere hope it becomes more concrete. The plaintiff must sit idly by and wait for the sword to fall. By the time the sword has fallen, the plaintiff's rights are taken and pre-enforcement review is no longer possible.

   This Note explores the Article III standing requirement as it relates to agency rulemaking and the need for an imminent injury. Part II discusses the facts of School of the Ozarks, Inc. v. Biden. Part III analyzes the standing and ripeness doctrines, as well as HUD's enforcement powers and judicial review of agencies. Part IV delves further into the Eighth Circuit's legal analysis in the case at issue. Finally, Part V reflects on the imminent harm requirement and the difficulty of applying it to agency action.

2. FACTS AND HOLDING

   College of the ozarks assigns its students to single-sex dorms based upon their biological sex, regardless of their gender identity. (10) The college believes in "God-given, objective gender, whether or not it differs from [students'] internal sense of 'gender identity.'" (11) While the college does not require its students to practice the school's religious ideals, all students must follow the religiously-inspired code of conduct set forth by the college. (12)

   College of the Ozarks took issue with the FHEO internal memorandum published on February 11, 2021. (13) This internal memorandum instructed the FHEO officials to accept and investigate complaints of sex discrimination, including discrimination based on sexual orientation and gender identity. (14) Believing itself to be a likely target of such an investigation due to its stance on sex and gender, College of the Ozarks sued President Biden, HUD, HUD's cabinet-level secretary, and the Principal Deputy Assistant Secretary for FHEO (collectively "defendants"). (15) College of the Ozarks requested a preliminary injunction against the defendants' enforcement of the memorandum. (16)

   College of the Ozarks brought constitutional claims against the defendants, asserting that the enforcement of the internal memorandum would violate its free exercise and free speech rights. (17) Additionally, College of the Ozarks claimed that the defendants violated the Administrative Procedure Act and the Religious Freedom Restoration Act by issuing the memorandum without notice and comment as 5 U.S.C. [section] 706(2)(D) requires. (18)

   The U.S. District Court for the Western District of Missouri evaluated College of the Ozarks' claims and request for a preliminary injunction. (19) After engaging in careful review of the plaintiff's claims, the court held that College of the Ozarks failed to establish standing. (20) The court found that the college was unable to show all three elements necessary for standing, due in large measure to the speculative nature of its injury. (21) Thus, the court dismissed College of the Ozarks' case, including its motion for preliminary injunction. (22)

   College of the Ozarks appealed the district court's decision to the United States Court of Appeals for the Eighth Circuit, alleging that the district court erred in determining that it lacked standing to bring its claims against defendants. (23) The Eighth Circuit reviewed de novo whether College of the Ozarks met the Article III standing requirements. (24) The Eighth Circuit affirmed the district court's decision. (25) The court held that College of the Ozarks failed to show standing to bring suit against defendants because the memorandum did not create an imminent threat of injury, as the alleged future injury was "conjectural and hypothetical," and because the injunction requested by College of the Ozarks would not redress the alleged injuries to its free speech and free exercise rights. (26)

3. LEGAL BACKGROUND

   A plaintiff suing a federal agency for abridging its constitutional rights must demonstrate that the court has jurisdiction to hear the case, which in turn requires the plaintiff to show it has standing to bring its claims. (27) The federal government assigns each agency a specific duty and enforcement power. (28) In order to show its injury is imminent, caused by the agency's conduct, and able to be redressed by the court, the plaintiff must demonstrate that the agency's enforcement had a specific impact on the plaintiff itself. (29) HUD is tasked to protect those who are discriminated against in housing. (30) The Supreme Court's recent decision in Bostock has further expanded this enforcement power. It is only through this lens that one may understand the elements College of the Ozarks must prove to show that it has standing and its claim is ripe for review.

   1. HUD Enforcement and Bostock

      The U.S. Department of Housing and Urban Development was established through the U.S. Housing Act of 1937 to encourage housing and community development. (31) Throughout the twentieth century, HUD worked to protect families in their efforts to establish and preserve homes. (32) With the passage of the Fair Housing Act of 1968, Congress outlawed most housing discrimination and HUD gained enforcement powers. (33) HUD was directed to prevent discrimination based on race, religion, and national origin in the housing market. (34) To carry out this obligation, Congress established FHEO as an office within HUD and authorized it to investigate Fair Housing violation complaints. (35) If HUD's Secretary has reason to believe there is a violation, he submits the information to the Attorney General and charges may be filed. (36)

      Under the Fair Housing Act, one cannot publish statements that are discriminatory in nature in one's efforts to sell or lease a dwelling. (37) Additionally, one cannot represent that a dwelling is not available for sale or rent due to an interested party's "race, color, religion, sex, familial status, or national origin." (38) These restrictions upon the lease or sale of a dwelling are enforced by FHEO and any violation may result in liability. (39) However, the Fair Housing Act recognizes an exemption to its requirements for religious organizations. (40) This exception allows a religious organization to discriminate on the basis of religion, unless membership in the religion is limited to members of a certain race or ethnicity. (41) Sex is not mentioned as part of the Fair Housing exemption for religious organizations. (42)

      A separate federal law, Title IX, protects individuals' access to educational opportunities. (43) This federal statute demands that all schools offer equal access to educational opportunities irrespective of sex. (44) Schools controlled by religious organizations, however, are exempt from Title IX and may therefore legally discriminate in education programs or activities on the basis of sex. (45)

      Private religious university housing sits at the crossroads of both statutory schemes. Because one statutory scheme specifically protects discrimination on the basis of sex, but the other does not, it is unclear whether such a university may do so without violation of federal law. (46)

      Serving as a crucial impetus to this question, in Bostock v. Clayton County, the Supreme Court of the United States announced that sex-based discrimination in employment includes discrimination based on gender identity and sexual orientation. (47) Justice Gorsuch, writing for the majority, explained that sex is a necessary component of gender identity and sexual orientation discrimination:

      Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee's wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. (48) Because discrimination based upon sex is a necessary feature of discrimination based on sexual orientation and gender identity, both are incapsulated in Title VII'S prohibition of "sex discrimination." (49) While the Bostock Court's broad statutory interpretation was limited to Title VII, other federal statutes, including the Fair Housing Act and Title IX, contain identical language. (50) Thus, the decision attracted widespread media attention and legal analysis, as journalists and legal scholars...