Christian Legal Soc. Chapter of Univ. of Cal. v. Wu

• Decision Date: 17 November 2010
• Docket Number: No. 06-15956,06-15956
• Citation: 626 F.3d 483
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: CHRISTIAN LEGAL SOCIETY CHAPTER OF UNIVERSITY OF CALIFORNIA, Hastings College of the Law, aka Hastings Christian Fellowship, Plaintiff-Appellant, v. Frank H. WU, in his official capacity as Chancellor and Dean of University of California, Hastings College of the Law; et al., Defendants-Appellees, Hastings Outlaw, Defendant-intervenor-Appellee.

626 F.3d 483

CHRISTIAN LEGAL SOCIETY CHAPTER OF UNIVERSITY OF CALIFORNIA, Hastings College of the Law, aka Hastings Christian Fellowship, Plaintiff-Appellant,

v. Frank H. WU,^* in his official capacity as Chancellor and Dean of University of California, Hastings College of the Law; et al., Defendants-Appellees,Hastings Outlaw, Defendant-intervenor-Appellee.

No. 06-15956.

United States Court of Appeals, Ninth Circuit.

Nov. 17, 2010.

Michael W. McConnell, Stanford, CA, Kimberlee Wood Colby, Center for Law & Religious Freedom, Springfield, VA, and Timothy M. Smith, McKinley & Smith, PC, Sacramento, CA, for the appellant.

Elise K. Traynum, General Counsel and Secretary, University of California Hastings College of the Law, San Francisco, CA, and Ethan P. Schulman, Crowell & Moring LLP, San Francisco, CA, for the appellees.

Shannon P. Minter and Christopher F. Stoll, National Center for Lesbian Rights, San Francisco, CA, and Paul M. Smith and Duane C. Pozza, Jenner & Block LLP, Washington, D.C., for the defendant-intervenor-appellee.

On Remand from the United States Supreme Court. D.C. No. CV-04-04484-JSW.

Before: ALEX KOZINSKI, Chief Judge, PROCTER HUG, JR. and CARLOS T. BEA, Circuit Judges.

ORDER

Our disposition in this case was affirmed by the Supreme Court. Christian Legal Soc'y v. Martinez, --- U.S. ----, 130 S.Ct. 2971, 2995, 177 L.Ed.2d 838 (2010). On remand, Christian Legal Society ("CLS") asks us to remand with instructions that the district court consider its claim that Hastings College of Law selectively appliesits Nondiscrimination Policy against CLS. Before the Supreme Court, CLS contended that "[t]he peculiarity, incoherence, and suspect history of the all-comers policy all point to pretext." Id. (internal quotation marks omitted) (alteration in original). The majority refused to address this argument, however, because "[n]either the District Court nor the Ninth Circuit addressed an argument that Hastings selectively enforces its all-comers policy, and this Court is not the proper forum to air the issue in the first instance." Id. The Court then remanded with instructions for us to consider the pretext issue "if, and to the extent, it is preserved." Id. True to the Court's instruction, we consider whether, and to what extent, CLS preserved the issue of selective enforcement.

At the outset, it's important to distinguish the two related discrimination arguments that CLS has attempted to make. First, CLS has argued that the school's Nondiscrimination Policy is unconstitutional because it prohibits discrimination on certain bases, including religion, but not others. Thus, even neutrally applied, the policy leaves groups like Hastings Democratic Caucus free to limit membership to those who agree with its core beliefs (which involve political issues), while CLS (whose core beliefs are religious) cannot. We call this the "uneven effect" argument. Second, CLS has argued that in practice Hastings selectively applies its policy against CLS because of its particular beliefs. Mot. To Remand at 4. We call this the "selective application" or "pretext" argument. The distinction between these arguments is critical, because the Supreme Court remanded only the pretext claim. Compare Christian Legal Soc'y, 130 S.Ct. at 2982-84 (rejecting the uneven effect argument), with id. at 2995 (remanding the selective application argument).

"We review only issues [that] are argued specifically and distinctly in a party's opening brief." Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n. 4 (9th Cir.2010). Within the opening brief, claims must be clearly articulated in (1) "a statement of the issues presented for review"; (2) "a summary of the argument"; and (3) "the argument" section itself. Fed. R.App. P. 28. Compliance with the rules is not a mere formality, as we've repeatedly held that "failure to comply with Rule 28, by itself, is sufficient ground to justify dismissal of an appeal." See, e.g., In re O'Brien, 312 F.3d 1135, 1136 (9th Cir.2002) (order). CLS's opening brief made no pretext argument, much less at each required juncture.

CLS presented only one issue for review: "Whether the Constitution permits a public law school to deny a religious student group numerous valuable benefits because the group requires its officers and voting members to agree with its religious viewpoint." Opening Br. at 2. This statement of the issue does not fairly encompass a selective application argument; it in no way suggests that Hastings applied its policy as a pretext for discrimination, or that it applied the policy to certain groups but not to others. This failure alone would warrant our dismissal of its motion for further proceedings on the ground that the pretext issue was not preserved. Cf. Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 250 n. 1 (9th Cir.1992) (refusing to address argument appellant "fail[ed] to raise ... in her statement of issues presented for review").

CLS's summary of argument also fails to raise the selective application argument. Our rules require "a succinct, clear, and accurate statement of the arguments made in the body of the brief." Fed. R.App. P. 28(a)(8). Although CLS filled three pages carefully articulating its claims under theFree Speech Clause, the Free Exercise Clause and the Equal Protection Clause, it made no allegation of "pretext," "selective application" or "discriminatory intent." See Opening Br. at 16-19. Thus, far from the "succinct, clear, and accurate statement of the arguments" we require, CLS failed even to allude to a pretext argument.

The selective application argument makes no appearance in the body of CLS's brief. CLS claims that it has "preserved the issue by consistently arguing in this Court ... that Appellees' all-comers policy is pretextual and has been selectively enforced," but it points only to isolated statements that, in context, were made only to support its uneven effect argument. Mot. To Remand at 3.

For example, CLS points to its statement that "Hastings allows other registered student organizations to require that their leaders and/or members agree with the organization's beliefs and purposes." Mot. To Remand at 5 (quoting Opening Br. at 14-15). This statement might be true, and might even be relevant to a selective application argument, but a bare assertion in the fact section of the opening brief will not preserve a legal argument that is never made. Why would CLS have included this fact if it wasn't making a pretext argument? Because the statement equally supports the uneven effect argument that CLS clearly did raise: Even neutrally applying the Nondiscrimination Policy, Hastings allows groups to discriminate on some bases, like political belief, but not others, such as religion. See Opening Br. at 63. CLS plucks this fact out of context to suggest it was making a pretext argument, when it clearly only made an uneven effect argument in its brief.

CLS also points to its assertion that "Hastings' actual practice demonstrates that the forum is not reserved to student organizations that do not discriminate on the basis of belief." Mot. To Remand at 5 (quoting Opening Br. at 54-55). But this statement was part of a broader free speech argument, which was ultimately rejected by the Supreme Court. See Christian Legal Soc'y, 130 S.Ct. at 2994-95. CLS argued that "because CLS falls within the parameters of Hastings' forum, Hastings' exclusion of the group is subject to strict scrutiny." Opening Br. at 53. This is completely unrelated to an argument that the policy was unconstitutional because Hastings used it to target religious groups. And, again, the statement that the forum is open to some groups that discriminate based on beliefs but not others would equally support the uneven effect theory. CLS offers no reason to read the statement as a pretext argument, as it never asserted that Hastings had a discriminatory purpose to exclude religious groups. Instead, it stipulated that Hastings applies its Nondiscrimination Policy to all student organizations:

Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of their [sic] status or beliefs. See Kane Depo. at 49; Chapman Depo. at 29-31. Thus, for example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs from becoming members or seeking leadership positions in the organization. See Kane Depo. at 50.

Joint Stip. of Facts at 7. The fact that some statements made to support the uneven effect argument could also have been used to support a selective application argument is not enough to preserve the latter argument, especially as it contradicts the written stipulation.¹

CLS's conflation of these two distinct issues is clearest when it asserts that "CLS devoted an entire section of its appellate brief to the argument that Hastings 'treats similarly situated student organizations differently.' " Reply to Opp'n at 5 (citing Opening Br. at 63). But the section CLS refers to—its equal protection section—focused only on the uneven effect of the Nondiscrimination Policy as uniformly applied. Here is CLS's entire argument on this point:

V. Hastings Has Violated Equal Protection Because It Treats Similarly Situated Student Organizations Differently.

The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 [105 S.Ct. 3249, 87 L.Ed.2d 313] (1985). As noted above, Hastings treats similarly situated student groups differently. Political groups, like Hastings Democratic Caucus, may require members to adhere to the purpose of the group. ER at 296. Cultural groups, like the Vietnamese American Law Society, may insist that members respect the organization's objectives. ER at 282. But a religious student group may not have religious qualifications for their officers and members.

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