FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIAN LEGAL SOCIETY
CHAPTER OF UNIVERSITY OF
CALIFORNIA, HASTINGS
COLLEGE OF THE LAW, aka Hastings
Christian Fellowship,
Plaintiff-Appellant,
No. 06-15956
v.
FRANK H. WU,* in his official D.C. No.
CV-04-04484-JSW
capacity as Chancellor and Dean
of University of California, ORDER
Hastings College of the Law; et
al.,
Defendants-Appellees,
HASTINGS OUTLAW,
Defendant-intervenor-Appellee.
On Remand from the United States Supreme Court
Filed November 17, 2010
Before: Alex Kozinski, Chief Judge, Procter Hug, Jr. and
Carlos T. Bea, Circuit Judges.
*Frank H. Wu replaced Leo P. Martinez as Hastings’ chancellor and
dean.
18561
18562 CHRISTIAN LEGAL SOCIETY v. WU
COUNSEL
Michael W. McConnell, Stanford, California, Kimberlee
Wood Colby, Center for Law & Religious Freedom, Spring-
field, Virginia, and Timothy M. Smith, McKinley & Smith,
PC, Sacramento, California, for the appellant.
Elise K. Traynum, General Counsel and Secretary, University
of California Hastings College of the Law, San Francisco,
California, and Ethan P. Schulman, Crowell & Moring LLP,
San Francisco, California, for the appellees.
Shannon P. Minter and Christopher F. Stoll, National Center
for Lesbian Rights, San Francisco, California, and Paul M.
Smith and Duane C. Pozza, Jenner & Block LLP, Washing-
ton, D.C., for the defendant-intervenor-appellee.
ORDER
Our disposition in this case was affirmed by the Supreme
Court. Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971,
2995 (2010). On remand, Christian Legal Society (“CLS”)
asks us to remand with instructions that the district court con-
sider its claim that Hastings College of Law selectively
applies its Nondiscrimination Policy against CLS. Before the
Supreme Court, CLS contended that “[t]he peculiarity, inco-
herence, 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.
CHRISTIAN LEGAL SOCIETY v. WU 18563
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 Dem-
ocratic 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 for-
mality, 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 argu-
ment, 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 reli-
gious viewpoint.” Opening Br. at 2. This statement of the
issue does not fairly encompass a selective application argu-
18564 CHRISTIAN LEGAL SOCIETY v. WU
ment; 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 war-
rant 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 the Free Speech
Clause, the Free Exercise Clause and the Equal Protection
Clause, it made no allegation of “pretext,” “selective applica-
tion” 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 pre-
text 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, which, in
context, were made only to support its uneven effect argu-
ment. 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 Open-
ing 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
CHRISTIAN LEGAL SOCIETY v. WU 18565
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 pre-
text argument, when it clearly only made an uneven effect
argument in its brief.
CLS also points to its assertion that “Hastings’ actual prac-
tice 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 organiza-
tions:
Hastings requires that registered student organiza-
tions allow any student to participate, become a
member, or seek leadership positions in the organi-
zation, 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 posi-
tions in the organization. See Kane Depo. at 50.
18566 CHRISTIAN LEGAL SOCIETY v. WU
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 Dif-
ferently.
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 (1985). As noted above,
Hastings treats similarly situated student groups dif-
ferently. Political groups, like Hastings Democratic
Caucus, may require members to adhere to the pur-
pose 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.
Evidence of discriminatory intent is presumed
when the exclusion affects a fundamental right.
1
Indeed, the Supreme Court rejected the uneven effect argument on pre-
cisely this ground. See Christian Legal Soc’y, 130 S. Ct. at 2982.
CHRISTIAN LEGAL SOCIETY v. WU 18567
Plyler v. Doe, 457 U.S. 202, 216-17 (1982). Has-
tings’ actions affect the fundamental rights of associ-
ation, speech, and free exercise. Because the
distinction drawn here affects a fundamental right, it
is subject to strict scrutiny. Clark v. Jeter, 486 U.S.
456 (1988).
Opening Br. at 63-64.2 CLS never argued that Hastings selec-
tively enforced its Nondiscrimination Policy, that it singled
out CLS for discriminatory treatment or (as it argued before
the Supreme Court) that the school’s “sudden adoption” of its
policy after CLS tried to register was proof that the policy is
a pretext for discrimination.
As previously noted, we won’t “consider matters on appeal
that are not specifically and distinctly argued in appellant’s
opening brief.” Miller v. Fairchild Indust., Inc., 797 F.2d 727,
738 (9th Cir. 1986). Applying this standard, we’ve refused to
address claims that were only “argue[d] in passing,” Brown-
field, 612 F.3d at 1149 n.4, or that were “bare assertion[s] . . .
with no supporting argument,” Navajo Nation v. U.S. Forest
Serv., 535 F.3d 1058, 1079 n.26 (9th Cir. 2008). CLS’s brief
didn’t even do that much; 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.” “Judges are not like
2
The citations to the record refer to the student group constitutions of
Hastings Democratic Caucus (“HDC”) and the Vietnamese American Law
Society (“VALS”). Both constitutions state that “any full-time student at
Hastings may become a member of [the group] so long as they [sic] do
not exhibit a consistent disregard and lack of respect for the organization”
whose purpose it is to “advance Democratic Party principles,” in the case
of HDC, and to “celebrate Vietnamese culture,” in the case of VALS. The
existence of these bylaws doesn’t show that the organizations are actually
excluding members based on beliefs. CLS stipulated that it does not. See
page 18565 supra. This is consistent with the fact that the constitutions of
both HDC and VALS specifically require that their respective
“[m]embership rules shall not violate the Nondiscrimination Compliance
Code of Hastings.”
18568 CHRISTIAN LEGAL SOCIETY v. WU
pigs, hunting for truffles buried in briefs.” Greenwood v.
FAA, 28 F.3d 971, 977 (9th Cir. 1994) (quoting United States
v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam))
(alteration omitted). But even after assiduously digging
through CLS’s opening brief, and carefully reviewing the pas-
sages CLS claims contain its pretext argument, we’ve found
nothing reasonably supporting its existence.
If omission of the pretext argument from the opening brief
weren’t sufficient to convince us that the issue has not been
preserved, but see Miller, 797 F.2d at 738, a review of oral
argument crystalizes our conclusion. In our first breath, we
asked counsel to distinguish Truth v. Kent Sch. Dist., 542
F.3d 634 (9th Cir. 2008), a case in which a student group
complained that the school’s Nondiscrimination Policy had an
unconstitutional effect on religion. Counsel didn’t distinguish
Truth on what would be the most obvious ground that Has-
tings applies its Nondiscrimination Policy as a pretext for dis-
crimination. Instead counsel responded only that:
First and foremost, Truth v. Kent was limited to gen-
eral membership, which was the equivalent of
attendees . . . . I think the other distinction, your
Honor, from Truth is that [the student group] was
seeking to be school sponsored.
Oral Argument at 0:19, available at http://www.ca9.uscourts.
gov/media/view_subpage.php?pk_id=0000002982. Neither
distinction points to pretext. Though the entire argument
focused on whether Truth controlled, CLS never tried to dis-
tinguish its case by claiming that Hastings selectively applied
its policy, while the school in Truth uniformly applied a pol-
icy that had an impermissible effect on religion. CLS never
claimed that Hastings’ policy was selectively enforced, nor
did it ask us to remand for further discovery on the pretext
issue.
Judges sometimes overlook issues fairly presented by the
parties, see Murdoch v. Castro, 609 F.3d 983, 999-1000 (9th
CHRISTIAN LEGAL SOCIETY v. WU 18569
Cir. 2010) (en banc) (Kozinski, C.J., dissenting), but that’s
not what happened here. CLS simply failed to raise this issue
the first time around, and it is not entitled to “a second bite
at the appellate apple.” Kesselring v. F/T Arctic Hero, 95 F.3d
23, 24 (9th Cir. 1996) (per curiam). If, going forward, Has-
tings applies its policy in a discriminatory way, CLS may be
able to file a new lawsuit. But in the current case, the
Supreme Court gave very specific instructions to consider the
pretext argument only “if, and to the extent, it is preserved.”
Christian Legal Soc’y, 130 S. Ct. at 2995. Having determined
that CLS has not preserved this argument, we have no author-
ity to consider it now. See id.; see also Briggs v. Pa. R.R., 334
U.S. 304, 306 (1948).
DENIED.