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. D.C. No.

FRANK H. WU,* in his official  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
COUNSEL

Michael W. McConnell, Stanford, California, Kimberlee

Wood Colby, Center for Law & Religious Freedom, Springfield, 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, Washington, 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 consider its claim that Hastings College of Law selectively

applies its 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. 

18562 CHRISTIAN LEGAL SOCIETY v. WU
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 arguCHRISTIAN LEGAL SOCIETY v. WU 18563
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 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 the Free 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, which, 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

18564 CHRISTIAN LEGAL SOCIETY v. WU
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.

CHRISTIAN LEGAL SOCIETY v. WU 18565
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 (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. 

Evidence of discriminatory intent is presumed

when the exclusion affects a fundamental right.

1

Indeed, the Supreme Court rejected the uneven effect argument on precisely this ground. See Christian Legal Soc’y, 130 S. Ct. at 2982. 

18566 CHRISTIAN LEGAL SOCIETY v. WU
Plyler v. Doe, 457 U.S. 202, 216-17 (1982). Hastings’ actions affect the fundamental rights of association, 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 selectively 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,” Brownfield, 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

2The 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.” 

CHRISTIAN LEGAL SOCIETY v. WU 18567
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 passages 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 Hastings applies its Nondiscrimination Policy as a pretext for discrimination. Instead counsel responded only that: 

First and foremost, Truth v. Kent was limited to general 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 distinguish its case by claiming that Hastings selectively applied

its policy, while the school in Truth uniformly applied a policy 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

18568 CHRISTIAN LEGAL SOCIETY v. WU
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, Hastings 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 authority to consider it now. See id.; see also Briggs v. Pa. R.R., 334

U.S. 304, 306 (1948).

DENIED.

CHRISTIAN LEGAL SOCIETY v. WU 18569