The US Court of Appeals for the Ninth Circuit [official website] on Wednesday dismissed a claim [opinion, PDF] by the Christian Legal Society (CLS) [advocacy website] in which the student group argued that the University of California-Hastings School of Law [academic website] selectively applies its nondiscrimination policy to CLS. The court dismissed CLS's claim on the grounds that CLS had not raised the nondiscrimination policy issue in its opening brief:
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." [...] 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.CLS argued that it had preserved the selective application issue throughout arguments before the court. Hastings rejected [JURIST report] the local chapter's application for registered student organization (RSO) status because the CLS bylaws exclude students based on religion and sexual orientation. Hastings' RSO policy mirrors the state discrimination policy and mandates that RSOs must allow "all comers" to participate regardless of status or beliefs.
In June, the US Supreme Court [official website; JURIST news archive] ruled [opinion, PDF] 5-4 in Christian Legal Society v. Martinez [Cornell LII backgrounder; JURIST report] that the "all comers" policy at Hastings, which limits funding to student organizations that adopt the school's nondiscrimination policy, is reasonable and viewpoint neutral and does not violate the First Amendment. CLS claimed that Hastings' refusal to grant the group RSO status violated its First and Fourteenth Amendment rights to free speech, expressive association and free exercise of religion, and sought an exemption from the school's open-access requirement. The Supreme Court affirmed the circuit court's ruling, holding that Hastings' policy met these specifications under the school's educational mission, but limited its opinion to "all comers" policies at public institutions. In 2004, CLS became the first group to seek exemption from Hastings' nondiscrimination policy. CLS chapters exclude from affiliation anyone who engages in "unrepentant homosexual conduct" or holds religious convictions different from those in the Statement of Faith, which all members are required to sign.