41 F.4th 992
8th Cir.2022Background:
- College of the Ozarks, a private Christian college, maintains single-sex dorms and a student conduct code treating biological sex as the determinant of gender and prohibiting opposite-sex visitation; it publicly communicates these housing rules.
- After Bostock v. Clayton County, the Biden Administration issued Executive Order 13988 and HUD’s Acting Assistant Secretary issued a January 2021 Memorandum concluding the Fair Housing Act’s prohibition on sex discrimination covers sexual orientation and gender identity and directing HUD’s FHEO to accept and investigate such complaints.
- The College sued federal officials seeking pre-enforcement declaratory and injunctive relief, alleging APA, First Amendment, Appointments Clause, and RFRA violations, and moved for emergency relief.
- The district court dismissed for lack of Article III standing and ripeness, reasoning the Memorandum is an internal directive that does not itself change legal rights or impose penalties, enforcement against the College is speculative, and enjoining the Memorandum would not prevent investigation required by statute or application of Bostock.
- The Eighth Circuit panel affirmed: the majority held the College’s asserted injuries were too speculative and not redressable; Judge Grasz dissented, arguing HUD’s Memorandum was an interpretative rule or significant guidance requiring notice-and-comment and that denial of that procedure gave the College standing.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III injury-in-fact / imminence of enforcement | Memorandum’s directive to “fully enforce” FHA creates an imminent threat of enforcement forcing policy change, sanctions, or eliminating student housing | Memorandum is internal guidance that does not itself impose obligations or penalties; any enforcement would stem from statute/case law and is speculative | No standing: alleged enforcement is speculative and not certainly impending |
| First Amendment (free speech) / chilling | Memorandum threatens prosecution under FHA §3604(c) for communicating housing policies, creating a credible enforcement threat and chilling speech | No credible threat; HUD has not enforced similar cases against colleges and College alleges no self-censorship | No standing: no credible threat and no alleged chilling or self-censorship |
| Redressability / ripeness | Injunction against the Memorandum would prevent HUD’s intensified enforcement and protect College from investigation/penalties | Even enjoined, HUD still must investigate complaints under the statute and apply Bostock; enjoining the Memorandum would not prevent statutory enforcement | Not redressable: enjoining memorandum would not eliminate statutory investigation/enforcement |
| Procedural (notice-and-comment) — presented in dissent | Memorandum is an interpretative rule or a significant guidance document subject to FHA notice-and-comment; deprivation of that procedural right causes concrete injury | Memorandum is internal guidance not imposing duties; procedural-violation theory insufficient without a concrete injury | Majority: procedural-deprivation alone not a concrete injury here; dissent would find standing via denied notice-and-comment |
Key Cases Cited
- Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) (Title VII interpretation that sex discrimination covers sexual orientation and gender identity)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements: injury, causation, redressability)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (speculative chain of possibilities insufficient for imminent injury)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement First Amendment challenges allowed where enforcement threat is imminent)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (ripeness and being the object of a regulation may support pre-enforcement review)
- Cornish v. Blakey, 336 F.3d 749 (8th Cir. 2003) (memorandum did not cause injury until an agency relied on it to take adverse action)
- Summers v. Earth Island Inst., 555 U.S. 488 (2009) (procedural-right deprivation without concrete interest is insufficient for standing)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (court need not accept legal conclusions pleaded as facts)