Supreme Court of the United States · Official docket →
The School of the Ozarks, Inc., dba College of the Ozarks v. Joseph R. Biden, Jr., President of the United States, et al.
Paid petition · United States Court of Appeals for the Eighth Circuit, No. 21-2270 · judgment July 27, 2022
Before the decision, about 5.5× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a circuit split argued in the petition, and an Eighth Circuit decision below.
Questions presented
The Fair Housing Act (FHA) prohibits sex-based discrimination in housing policy or speech, and it applies to college dorms. As recently as 2020, the Department of Housing and Urban Development (HUD) denied that “sex” in the FHA’s non-discrimination provision covers gender identity, allowing schools like Petitioner College of the Ozarks to assign dormitories based on biological sex and to communicate that policy to its students. All that changed in 2021. In response to an Executive Order from President Biden declaring that the FHA now prohibits discrimination “on the basis of gender identity,” HUD issued a Directive mandating “full enforcement” of this new prohibition. President Biden characterized the Directive as a “rule change” that “finally” enforced the FHA. HUD declined to provide notice and comment, as both the FHA and APA require. But when the College challenged the Directive, the lower courts dismissed, holding that the College suffered no Article III injury because there was no imminent threat of enforcement and the College had not articulated a concrete injury. The questions presented are:
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Whether a notice-and-comment violation, on its own, can establish Article III standing for a regulated entity within the applicable zone of interests, as the Fifth, Sixth, Ninth, D.C. and Federal Circuits have held, or whether an additional injury is required, as the Eighth Circuit held here.
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Whether a regulated entity has Article III standing to challenge an illegal regulation where the entity (a) arguably falls with the rule’s plain scope, and (b) there is a risk of enforcement.
Counsel of record
For petitioner
John J. Bursch
Alliance Defending Freedom
For respondent
Elizabeth B. Prelogar
Solicitor General
Proceedings
- Jun 20 2023Petition DENIED.
- May 30 2023DISTRIBUTED for Conference of 6/15/2023.
- May 26 2023Reply of petitioner The School of the Ozarks, Inc. filed. (Distributed)
- May 16 2023Brief of respondents Joseph R. Biden, Jr., President of the United States, et al. in opposition filed.
- Apr 19 2023Motion to extend the time to file a response is granted and the time is further extended to and including May 16, 2023.
- Apr 18 2023Motion to extend the time to file a response from May 1, 2023 to May 16, 2023, submitted to The Clerk.
- Mar 30 2023Brief amicus curiae of The Council for Christian Colleges & Universities filed.
- Mar 30 2023Brief amicus curiae of Center for Constitutional Jurisprudence filed.
- Mar 30 2023Brief amici curiae of Advancing American Freedom, Inc., et al. filed.
- Mar 30 2023Brief amici curiae of American Association of Christian Schools and Wagner Faith & Freedom Center filed.
- Mar 30 2023Brief amici curiae of Cato Institute, et al. filed.
- Mar 30 2023Brief amici curiae of Hannibal-Lagrange University, et al. filed.
- Mar 28 2023Brief amicus curiae of Liberty Justice Center filed.
- Mar 28 2023Brief amici curiae of Mountain States Legal Foundation, et al. filed.
- Mar 28 2023Brief amici curiae of Missouri, et al filed.
- Mar 28 2023Brief amici curiae of Judicial Watch, Inc., et al. filed.
- Mar 06 2023Motion to extend the time to file a response is granted and the time is extended to and including May 1, 2023.
- Mar 03 2023Motion to extend the time to file a response from March 30, 2023 to May 1, 2023, submitted to The Clerk.
- Feb 27 2023Petition for a writ of certiorari filed. (Response due March 30, 2023)
- Nov 30 2022Application (22A471) granted by Justice Kavanaugh extending the time to file until February 27, 2023.
- Nov 23 2022Application (22A471) to extend the time to file a petition for a writ of certiorari from December 29, 2022 to February 27, 2023, submitted to Justice Kavanaugh.