(CN) – The 9th Circuit on Wednesday refused to consider a Christian student group’s claim that a public law school selectively enforces its nondiscrimination policy, saying the group “simply failed to raise this issue the first time around.”
The Supreme Court in June upheld the circuit’s previous ruling that the “all-comers” policy at the University of California’s Hastings College of Law was viewpoint-neutral, despite a challenge by a campus chapter of the Christian Legal Society.
On remand, the high court instructed the appellate panel to consider whether that policy was selectively enforced — but only if the argument had been preserved.
Finding that the Christian Legal Society (CLS) failed to make the claim earlier, the panel declined to consider it.
“The selective application argument makes no appearance in the body of CLS’s brief,” the court wrote. “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, which, in context, were made only to support its uneven effect argument.”
The court said the distinction between the Christian group’s two discrimination-based arguments “is critical, because the Supreme Court remanded only the pretext claim.”
The “pretext” or “selective application” argument claims the law school selectively enforced its nondiscrimination policy against CLS because of its religious beliefs. The group also argued, at an earlier stage, that Hastings’ nondiscrimination policy is unconstitutional because it allows discrimination on some grounds, but not others — the so-called “uneven effect argument.”
The panel said CLS could file a new lawsuit in the future, but in the current case the Supreme Court’s specific instructions on remand preclude further review.
“CLS’s hindsight attempt to string together an argument from quotes scattered throughout its opening brief confirms that it made no pretext argument at all, much less ‘specifically and distinctly,'” the judges wrote.
“But even after assiduously digging through CLS’s opening brief, and carefully reviewing the passages CLS claims contain its pretext argument, we’ve found nothing reasonably supporting its existence.”
As a result, the 9th Circuit said it lacked the authority to review or remand the case.
The Christian group originally sued Hastings after the law school denied its application for official recognition. Hastings said the group’s bylaws ran afoul of its open-access policy, because the group required members to sign a statement of faith rejecting “unrepentant homosexual conduct.”