CHRISTIAN LEGAL SOC. v. Wu
626 F.3d 483
| 9th Cir. | 2010Background
- CLS challenged Hastings College of the Law’s Nondiscrimination Policy as applied to its religious student group; Supreme Court remanded to address pretext if preserved; Ninth Circuit on remand must evaluate preservation of the selective-enforcement argument; CLS argued policy sweeps religious groups but not other groups, raising unequal effect and selective-enforcement theories; the panel held CLS failed to preserve any pretext argument in its opening brief or summary and thus the issue is not reviewable; the court treated the
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of pretext claim under remand | CLS preserved pretext by arguing selective enforcement | Hastings' pretext issue not argued clearly in opening brief | Pretext not preserved; cannot be considered |
| Distinction between uneven effect and selective enforcement | CLS alleged selective enforcement against religious groups | Policy unevenly affects groups but not pretext | Issue not preserved; limited remand to pretext grounds |
Key Cases Cited
- Brownfield v. City of Yakima, 612 F.3d 1140 (9th Cir.2010) (clear briefing requirements govern preservation of issues under Rule 28)
- Truth v. Kent Sch. Dist., 542 F.3d 634 (9th Cir.2008) (pretext argument distinguished in remand decision)
- Plyler v. Doe, 457 U.S. 202 (1982) (strict scrutiny applicable when fundamental rights implicated)
- Clark v. Jeter, 486 U.S. 456 (1988) (fundamental rights invoke strict scrutiny)
- City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (equal protection analysis for classifications affecting fundamental rights)
- Miller v. Fairchild Indust., Inc., 797 F.2d 727 (9th Cir.1986) (preservation and scope of arguments on appeal)
- Truth v. Kent Sch. Dist., 542 F.3d 634 (9th Cir.2008) (pretext argument distinguished in remand decision)