21-2270 Pi Memo
21-2270 Pi Memo
21-2270
___________________________________________________________________________________________________________________
IN THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
___________________________________________________________________________________________________________________
Appellate Case: 21-2270 Page: 1 Date Filed: 06/11/2021 Entry ID: 5044600
CORPORATE DISCLOSURE STATEMENT
i
Appellate Case: 21-2270 Page: 2 Date Filed: 06/11/2021 Entry ID: 5044600
TABLE OF CONTENTS
Introduction ...............................................................................................1
Background................................................................................................1
Argument ...................................................................................................5
Conclusion ...............................................................................................22
ii
Appellate Case: 21-2270 Page: 3 Date Filed: 06/11/2021 Entry ID: 5044600
Certificate of Compliance ........................................................................24
iii
Appellate Case: 21-2270 Page: 4 Date Filed: 06/11/2021 Entry ID: 5044600
TABLE OF AUTHORITIES
Cases
Bennett v. Spear,
520 U.S. 154 (1997) ........................................................................ 12
Elrod v. Burns,
427 U.S. 347 (1976) ........................................................................ 22
iv
Appellate Case: 21-2270 Page: 5 Date Filed: 06/11/2021 Entry ID: 5044600
Gregory v. Ashcroft,
501 U.S. 452 (1991) ........................................................................ 18
Martin v. Gerlinski,
133 F.3d 1076 (8th Cir. 1998) ........................................................ 15
Michigan v. EPA,
576 U.S. 743 (2015) ........................................................................ 16
Rodgers v. Bryant,
942 F.3d 451 (8th Cir. 2019) .................................................... 10, 22
Sackett v. EPA,
566 U.S. 120 (2012) ........................................................................ 13
Tamenut v. Mukasey,
521 F.3d 1000 (8th Cir. 2008) ........................................................ 11
v
Appellate Case: 21-2270 Page: 6 Date Filed: 06/11/2021 Entry ID: 5044600
Telescope Media Group v. Lucero,
936 F.3d 740 (8th Cir. 2019) ........................................ 5, 8, 9, 10, 21
Vitolo v. Guzman,
No. 21-5517, 2021 WL 2172181 (6th Cir. May 27, 2021) .............. 22
Statutes
vi
Appellate Case: 21-2270 Page: 7 Date Filed: 06/11/2021 Entry ID: 5044600
42 U.S.C. § 3614a .................................................................................... 14
Other Authorities
Regulations
vii
Appellate Case: 21-2270 Page: 8 Date Filed: 06/11/2021 Entry ID: 5044600
Making Admission or Placement Determinations Based on Sex in
Facilities Under Community Planning and Development
Housing Programs, 85 Fed. Reg. 44,811 (July 24, 2020) ................2
viii
Appellate Case: 21-2270 Page: 9 Date Filed: 06/11/2021 Entry ID: 5044600
INTRODUCTION
court denied an injunction and sua sponte dismissed the case as non-
justiciable, declaring that the Directive is a non-binding policy
statement. Add1–7. That is error. The Directive is reviewable final
agency action that imposes immediate obligations on the College coupled
with threats of crippling fines and even criminal prosecution. The College
has standing and is likely to succeed on the merits. This Court should
issue an injunction pending appeal.
BACKGROUND
Congress enacted the Fair Housing Act (FHA) in 1968 to prohibit
discrimination based on race, religion, and national origin, and amended
it in 1974 to prohibit sex discrimination. 42 U.S.C. § 3604(a) & (b); 24
C.F.R. § 100.50(b)(1)–(3). The FHA and its regulations prohibit speech
1
Appellate Case: 21-2270 Page: 10 Date Filed: 06/11/2021 Entry ID: 5044600
expressing a policy of or preference for discrimination. 42 U.S.C.
§ 3604(c); 24 C.F.R. § 100.50(b)(4)–(5).
officials and federally funded states and nonprofits to “fully enforce” this
standard nationwide to “eradicat[e]” discrimination. Add9–12. The
Directive applies both prospectively and retroactively one year. Id.
President Biden called the Directive a “rule change.” ECF 1-14 at 2.
2
Appellate Case: 21-2270 Page: 11 Date Filed: 06/11/2021 Entry ID: 5044600
The FHA includes broad enforcement mechanisms, including
complaints, investigations, and lawsuits. Compl. ¶¶ 158–77. Its penalties
FHA, and who may file complaints and bring lawsuits—even if they lack
a personal interest in obtaining housing. 42 U.S.C. §§ 3610(a)(1)(A)(i),
3613, 3614; 24 C.F.R. § 103.9, et seq. Those testers include a federal
3
Appellate Case: 21-2270 Page: 12 Date Filed: 06/11/2021 Entry ID: 5044600
Contrary to the College’s code, the Directive forces colleges to let
males occupy female dorms—and qualify for roommate selection—if they
claim a female gender identity. ECF 2-1 at 19–20; ECF 20 at 17–21. And
because the FHA and HUD ban discriminatory statements and notices,
the Directive censors colleges’ speech, banning them from saying that
4
Appellate Case: 21-2270 Page: 13 Date Filed: 06/11/2021 Entry ID: 5044600
ARGUMENT
I. The College has standing to challenge the Directive.
A. The Directive threatens imminent injury and causes
irreparable harm that an injunction would redress.
Standing exists when (1) a regulated entity is threatened with
imminent injury; (2) a causal connection exists between the injury and
229–73.
The Directive threatens these injuries because it binds internal and
external enforcement programs to its interpretation of the FHA. ECF 19
at 11, 24. No prior court decision or agency decision required this: prior
HUD actions were, in the Directive’s own words, “limited” and
“insufficient,” and “fail[ed] to fully enforce” HUD’s new view. Add11. And
5
Appellate Case: 21-2270 Page: 14 Date Filed: 06/11/2021 Entry ID: 5044600
as recently as 2020, HUD said that the FHA allows separating housing
by biological sex. ECF 20 at 3–5.
The government does not dispute that the Directive adds sexual
orientation and gender identity to the FHA’s categories and regulations,
including its prohibitions on speech. 42 U.S.C. § 3604(c); 24 C.F.R.
are in the crosshairs of the Directive. The government views the College’s
statements about its housing policies to “indicate a discriminatory and
unlawful preference.” ECF 19 at 41–42. Under the Directive, the FHA
covers a student who “might someday experience housing discrimination
on the basis of sexual identity or sexual orientation.” Add15. Likewise,
the Directive covers “a cisgender student who may experience housing
6
Appellate Case: 21-2270 Page: 15 Date Filed: 06/11/2021 Entry ID: 5044600
on the basis of gender stereotype” from the College’s religiously informed
speech about sexuality. Add16. That is why the government told the
The district court sidestepped these facts and said any injury or
restriction on speech is caused by extending Bostock v. Clayton County,
140 S. Ct. 1731 (2020) to the FHA. Add4–7. But Bostock did not interpret
the FHA, and the Supreme Court disavowed that it was ruling on any
“other laws” or that its holding encompassed intimate spaces. 140 S. Ct.
at 1753. Interpreting the FHA to encompass gender identity and sexual
7
Appellate Case: 21-2270 Page: 16 Date Filed: 06/11/2021 Entry ID: 5044600
prosecutor or an agency.” Susan B. Anthony List v. Driehaus, 573 U.S.
149, 164 (2014). Moreover, a favorable judgment would relieve the
8
Appellate Case: 21-2270 Page: 17 Date Filed: 06/11/2021 Entry ID: 5044600
College has “an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by,” or “arguably
2016), schools face a credible threat of enforcement under the FHA as the
Directive interprets it.
The College thus has standing to challenge the threat to its policies
and speech. The College’s student policies are intertwined with the
College’s speech and educational mission, and so all “are affected with a
constitutional interest too, regardless of the precise legal theory.”
9
Appellate Case: 21-2270 Page: 18 Date Filed: 06/11/2021 Entry ID: 5044600
Telescope Media, 936 F.3d at 749–50.
Below, the government asserted that no credible enforcement
threat exists because HUD has not yet brought an FHA charge against a
college that also possesses a religious exemption under Title IX. ECF 19
at 2–3, 6–7, 11, 16–17, 20. But the Directive is only four months old—a
enforced.” 281 Care Comm., 638 F.3d at 628, 631. Only an unchangeable
policy forswearing future enforcement, or a long history of disuse
approaching desuetude, might lessen the Directive’s credible threat. Id.
In fact, this Court has found standing even where the government swore
off enforcement in court. Rodgers v. Bryant, 942 F.3d 451, 455 (8th Cir.
2019). And here, the government insists the Directive does impact the
College’s religiously informed policies concerning sex, gender identity,
and visitors. Add15–17. Moreover, the government nowhere admits that
exemptions found in Title IX, a separate statute, actually protect colleges
10
Appellate Case: 21-2270 Page: 19 Date Filed: 06/11/2021 Entry ID: 5044600
with single-sex restrooms, ECF 1-17 at 2, and single-sex housing. HUD
insists that even in a “single-sex” facility, “placement and accommodation
the College it can still have “female” dorms provided it lets biological
males who identify as female live there.
11
Appellate Case: 21-2270 Page: 20 Date Filed: 06/11/2021 Entry ID: 5044600
Agency action is final and reviewable if: (1) the agency’s action is
the “‘consummation’ of the agency’s decisionmaking process”; and (2) “the
12
Appellate Case: 21-2270 Page: 21 Date Filed: 06/11/2021 Entry ID: 5044600
identity and sexual orientation nondiscrimination requirement, the
Directive’s imposition of the same requirement is per se non-binding
policy guidance with no consequences of its own. Add4–7. Not so. The
Directive interprets the FHA to prohibit certain actions not stated in the
FHA or its regulations—policies that the College and others have had for
13
Appellate Case: 21-2270 Page: 22 Date Filed: 06/11/2021 Entry ID: 5044600
III. The College is entitled to injunctive relief pending appeal.
Injunctive relief pending appeal is warranted when the balance of
equities favors the applicant, considering “(1) the likelihood of the
movant’s success on the merits; (2) the threat of irreparable harm to the
movant in the absence of relief; (3) the balance between that harm and
the harm that the relief would cause to other litigants; and (4) the public
interest.” Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). “The
most important factor is the appellant’s likelihood of success on the
merits.” Brady v. Nat’l Football League, 640 F.3d 785, 789 (8th Cir. 2011)
(per curiam).
14
Appellate Case: 21-2270 Page: 23 Date Filed: 06/11/2021 Entry ID: 5044600
Even as an interpretive rule, the Directive would require notice and
comment under the FHA, but given its substantive and legislative
nature, it also required notice and comment under the APA and HUD
regulations. The court below reasoned that the Directive is not a rule but
a non-binding policy document. Add4–7. But 24 C.F.R. §§ 11.1(b) and 11.8
still apply. And the Directive has all the characteristics of a binding rule.
Courts consider, for example, the agency’s own characterization of the
action, Drake v. Honeywell, Inc., 797 F.2d 603, 607–08 (8th Cir. 1986),
and HUD called the document a “directive,” and President Biden called
it a “rule change,” ECF 1-14 at 2. Both are correct. Like a rule, the
Directive “purports to create substantive requirements” in the form of
a rule, on its face the Directive binds the agency and external
enforcement entities to those requirements, and it requires full
enforcement against all entities covered by the FHA in all situations.
Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998).
Even as an interpretive rule, the Directive would require notice and
comment under the FHA, but given its substantive and legislative
15
Appellate Case: 21-2270 Page: 24 Date Filed: 06/11/2021 Entry ID: 5044600
nature, it also required notice and comment under the APA and HUD
regulations.
16
Appellate Case: 21-2270 Page: 25 Date Filed: 06/11/2021 Entry ID: 5044600
(3) grandfathering existing categories of single-sex housing;
(4) exempting religious institutions; or (5) crafting privacy exemptions.
Nor did HUD consider the FHA’s interplay with Title IX. Infra Pt.III.A.3.
Considering these policy concerns “was the agency’s job, but the
agency failed to do it.” Regents, 140 S. Ct. at 1914.
17
Appellate Case: 21-2270 Page: 26 Date Filed: 06/11/2021 Entry ID: 5044600
Yet the Directive does just that: it interprets “sex” both in the FHA
and Title IX to create obligations contrary to 20 U.S.C. § 1686.
Rowley, 458 U.S. 176, 190 n.11 (1982). These structural principles protect
citizens, not just states. Bond v. United States (Bond I), 564 U.S. 211, 222
(2011). And because private parties’ “rights in this regard do not belong
to a State,” a regulated person injured by government action may assert
that the action was “taken in excess of the authority that federalism
defines.” Id. at 220. Each statute subject to this canon thus “must be read
18
Appellate Case: 21-2270 Page: 27 Date Filed: 06/11/2021 Entry ID: 5044600
consistent with principles of federalism inherent in our constitutional
structure” in all applications. Bond II, 572 U.S. at 856–60. Here, the 1974
state laws that prohibit sex discrimination.” 140 S. Ct. at 1753. The Court
observed that “none of these other laws are before us; we have not had
the benefit of adversarial testing about the meaning of their terms, and
we do not prejudge any such question.” Id. Even under Title VII, the
Court did “not purport to address bathrooms, locker rooms, or anything
else of the kind.” Id. The Court was also “deeply concerned with
preserving” religious institutions’ freedom. Id. at 1753–54. Nor did
Bostock consider the effect of the clear-notice canon when it interpreted
Title VII, so it did not displace this substantive canon’s constitutional
19
Appellate Case: 21-2270 Page: 28 Date Filed: 06/11/2021 Entry ID: 5044600
modifies, prohibits speech “with respect to the sale or rental of a dwelling
that indicates any preference, limitation, or discrimination based on
making:
• Posting online its beliefs about sex and gender identity,
including that its student housing and visitation are separated
20
Appellate Case: 21-2270 Page: 29 Date Filed: 06/11/2021 Entry ID: 5044600
to use a student’s preferred pronouns based on gender identity, it is
subject to the FHA’s anti-hostility and anti-harassment provisions
(which the government insists apply to the College under the Directive,
Add16). Compl. ¶¶ 225, 239, 241.
This one-sided mandate is a regulation of speech by content and
asserted that the College’s speech about its religiously informed student
housing policies is per se “not protected speech” because it furthers
discrimination. ECF 19 at 41–42. But under this view “wide swaths of
protected speech would be subject to regulation.” Telescope Media, 936
F.3d at 752. And, “as compelling as the interest in preventing
discriminatory conduct may be, speech is treated differently under the
21
Appellate Case: 21-2270 Page: 30 Date Filed: 06/11/2021 Entry ID: 5044600
First Amendment.” Id. at 755.
The Directive is overbroad because it sweeps in speech not just of
CONCLUSION
This Court should enter an injunction pending appeal, without
bond, with the same scope as the preliminary injunction that the College
sought. ECF 2 at 3–4.
22
Appellate Case: 21-2270 Page: 31 Date Filed: 06/11/2021 Entry ID: 5044600
Respectfully submitted,
23
Appellate Case: 21-2270 Page: 32 Date Filed: 06/11/2021 Entry ID: 5044600
CERTIFICATE OF COMPLIANCE
24
Appellate Case: 21-2270 Page: 33 Date Filed: 06/11/2021 Entry ID: 5044600
CERTIFICATE OF SERVICE
I hereby certify that on June 11, 2021, the above motion for an
injunction pending appeal was filed electronically with the Clerk of the
Court for the United States Court of Appeals for the Eighth Circuit
through the Court’s CM/ECF system. I certify that all participants in
the case who are registered CM/ECF users will be served by the
appellate CM/ECF system and that a PDF copy of this motion will be
emailed to opposing counsel immediately after it is filed.
25
Appellate Case: 21-2270 Page: 34 Date Filed: 06/11/2021 Entry ID: 5044600