“The United States Court of Appeals for the Eighth Circuit ruled against the College of the Ozarks’s (CofO) lawsuit against the Biden administration’s directive that universities permit student housing based on gender identity,” reports Campus Reform. The court ruled the College of the Ozarks lacked legal standing to challenge the directive even if the Biden directive misinterpreted the Fair Housing Act and got the law wrong.
It must have seemed an odd result to the College. When courts really want to allow a lawsuit challenging a policy, they will come up with rationalizations for letting someone sue over it, even if the policy won’t harm the person suing over it for many years, or maybe not at all. For example, the courts allow people to sue over Fair Housing Act violations when they are not really injured by those violations at all — like testers who apply for a job with no intention of ever taking the job, or non-profits who employ such testers, or even people who see advertising that is insufficiently “diverse,” but has no effect on the availability of housing for them. (See, e.g., Havens Realty v. Coleman (1982); Ragin v. New York Times (1991)).
But here, the courts wouldn’t let the college challenge the directive before it itself gets sued — and thus runs up big potential liability as a result. The college had a huge stake in the issue, which in a sane world would give it legal standing to challenge the directive.
Law professors have long noted that the way the courts apply the doctrine of standing is inconsistent and incoherent.
The Eighth Circuit Court of Appeals ruled against College of the Osarks, on July 27. CofO, a Christian college, had filed its lawsuit back in 2021.
Campus Reform reports:
CofO challenged the Department of Housing and Urban Development (HUD) after a memo was issued in Feb. 2021 that prohibited discrimination of “gender identity or sexual orientation” under the Fair Housing Act.
Alliance Defending Freedom (ADF), which represented the college, alleged that the order violated religious liberty by forcing religious schools to open “their dormitories, including dorm rooms and shared shower spaces, to members of the opposite sex.”
The appellate court, however, upheld a lower ruling to toss the case on the basis that the college lacked sufficient standing to sue.
“The district court ruled that the College lacked standing to establish a case or controversy and dismissed the action for lack of jurisdiction,” the July 27 ruling stated. “The College appeals, and we affirm.”
According to a statement provided to Campus Reform by ADF Senior Counsel Matt Bowman, ADF is “considering all legal options.”
“While we are disappointed about the decision, we will continue to advocate for College of the Ozark’s freedom to operate and educate students consistent with its faith-based mission. And College of the Ozarks will continue to follow that mission and serve its students well,” Bowman’s statement read.
The HUD directive came as a result of a 2021 executive order that standardized protection for the LGBT community. The order ruled that federal regulations including Title IX and the Federal Housing Act must include transgender and gay individuals under sex-based discrimination.
The order, one of the first of the Biden White House, was built atop the Supreme Court case Bostock v. Clayton County, which expanded the Civil Rights Act of 1964 to include sexual orientation and gender identity.
CofO’s self-described mission is to “develop citizens of Christlike character who are well-educated, hard-working, and patriotic.”
[RELATED: How ‘gender inclusion’ policies exclude women’s safety]
But while the college fights to keep traditional gender-based housing, other universities are attempting to adopt gender-inclusive policies.
Last fall, Campus Reform reported that the University of North Dakota proposed a “gender inclusion” mandate that would have [allowed students to use dorm rooms and bathrooms regardless of their biological sex].
Last semester, the University of Toledo, in Ohio, also introduced a policy allowing students to share dormitories, bathrooms, and locker rooms regardless of biological sex.
The courts are much more charitable in allowing lefty states and non-profits to sue federal agencies even when no injury is imminent. The Supreme Court, in a five-to-four vote, allowed state governments to sue the EPA to force it to restrict emissions of carbon dioxide, a clean, colorless, odorless gas, because higher carbon dioxide levels could eventually increase atmospheric temperatures in the distant future (never mind that the EPA lacks jurisdiction over most of the world, can’t possibly keep the temperature from rising, and restricting greenhouse gas emissions in the U.S. might just result in factories moving to foreign countries that don’t regulate carbon dioxide emissions — meaning EPA regulation might not cut global CO2 emissions at all, and could be largely pointless). See Massachusetts v. EPA (2007).
