FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIZABETH HUNTER; VERONICA 

BONIFACIO PENALES; ALEX 

DURON; ZAYN SILVA; RACHEL 

MOULTON; VICTORIA JOY 

BACON; HAYDEN BROWN; 

BROOKE C.; GARY CAMPBELL; 

TRISTAN CAMPBELL; NATALIE 

CARTER; RACHEL HELD; 

LAUREN HOEKSTRA; CHANDLER 

HORNING; JONATHAN JONES; 

ASHTIN MARKOWSKI; 

CAMERON MARTINEZ; 

MACKENZIE MCCANN; DARREN 

MCDONALD; SCOTT MCSWAIN; 

JAYCEN MONTGOMERY; 

JOURNEY MUELLER; JAKE 

PICKER; DANIELLE POWELL; 

SPENCER J. VIGIL; LUCAS 

WILSON; AUDREY 

WOJNAROWISCH; DANIEL 

TIDWELL-DAVIS; DEVIN 

BRYANT; SAREN CRIAG; JAMIE 

LORD; CONSOLATA BRYANT; 

JUSTIN TIDWELL-DAVIS; MEGAN 

STEFFEN; MORTIMER 

HALLIGAN, on behalf of themselves 

and all others similarly situated, 

No. 23-35174 

D.C. No. 6:21-cv00474-AA 

OPINION
2 HUNTER V. USDOE

Plaintiffs-Appellants, 

ANDREW HARTZLER; KALIE 

HARGROVE; SABRINA 

BRADFORD; CLOVER ST. 

HUBERT; ALICE MURPHY; 

VIOLET ADAMS, 

Appellants, 

 v. 

U.S. DEPARTMENT OF 

EDUCATION; CATHERINE E. 

LHAMON, in her official capacity as 

Assistant Secretary for the Office of 

Civil Rights, U.S. Department of 

Education, 

Defendants-Appellees, 

WESTERN BAPTIST COLLEGE, 

DBA Corban University; WILLIAM 

JESSUP UNIVERSITY; PHOENIX 

SEMINARY; COUNCIL FOR 

CHRISTIAN COLLEGES & 

UNIVERSITIES, 

Intervenor-DefendantsAppellees.
HUNTER V. USDOE 3 

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding 

Argued and Submitted July 16, 2024 

San Francisco, California 

Filed August 30, 2024 

Before: MILAN D. SMITH, JR., MARK J. BENNETT, 

and ANTHONY D. JOHNSTONE, Circuit Judges. 

Opinion by Judge Milan D. Smith, Jr. 

SUMMARY*

Title IX

The panel affirmed the district court’s dismissal of an 

action brought by LGBTQ+ students against the Department 

of Education challenging a religious exemption to Title IX, 

which prohibits gender discrimination at federally funded 

educational institutions but carves out an exception for 

religious institutions whose tenets mandate gender-based 

discrimination. 

The district court dismissed for failure to state a claim 

plaintiffs’ claims that Title IX’s religious exemption 

establishes a religion in violation of the First Amendment 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
4 HUNTER V. USDOE

and violates the equal protection guarantee of the Fifth 

Amendment, and dismissed for lack of Article III standing 

plaintiffs’ challenge to the Department’s implementing 

regulations of Title IX as arbitrary and capricious under the 

Administrative Procedure Act (APA).

The panel declined to apply the invited error doctrine—

which provides that a party may not complain on review of 

errors below for which he is responsible—or the waiver 

doctrine—which provides that issues not presented to the 

trial court cannot generally be raised for the first time on 

appeal—and proceeded to the merits of plaintiffs’ 

Establishment Clause claim. The panel held that Title IX’s 

religious exemption does not violate the First Amendment’s 

Establishment Clause under the historical practices and 

understanding test set forth in Kennedy v. Bremerton School 

District, 597 U.S. 507 (2022). First, the history of tax 

exemptions for religious organizations near the time of the 

Founding suggests that statutory exemptions that operate as 

a subsidy to religious institutions do not violate the 

Establishment Clause according to its original 

meaning. Second, case law evinces a continuous, centurylong practice of governmental accommodations for religion 

that the Supreme Court and this court have repeatedly 

accepted as consistent with the Establishment Clause.

The panel affirmed the district court’s dismissal of 

plaintiffs’ claim that Title IX’s religious exemption violates 

the equal protection guarantee. The panel held that it need 

not decide whether intermediate scrutiny or rational basis 

review applies because the exemption would survive the 

more demanding intermediate scrutiny standard. The 

exemption substantially relates to the achievement of 

limiting government interference with the free exercise of 

religion. The exemption does not give a free pass to 
HUNTER V. USDOE 5 

discriminate on the basis of sex to every institution; it 

contains limits that ensure that Title IX is not enforced only 

where it would create a direct conflict with a religious 

institution’s exercise of religion. 

The panel held that the district court appropriately 

dismissed, for lack of standing, plaintiffs’ claim under the 

APA challenging as arbitrary and capricious an amendment 

to Title IX’s implementing regulations, the August 2020 

Rule, which clarified that institutions are not required to 

submit a written statement prior to invoking the religious 

exemption. None of plaintiffs’ allegations suggested that the 

Rule caused an individual plaintiff harm. 

Finally, the panel held that the district court did not abuse 

its discretion in denying plaintiffs leave to amend their 

complaint.

COUNSEL

Alletta S. Brenner (argued) and Megan Houlihan, Perkins 

Coie LLP, Portland, Oregon; Paul C. Southwick, Paul 

Southwick Law LLC, Portland, Oregon; for PlaintiffsAppellants. 

Ashley C. Honold (argued) and Melissa N. Patterson, 

Appellate Staff Attorneys; Carol Federighi, Senior Trial 

Counsel, Civil Division, Federal Programs Branch; Natalie 

K. Wight, United States Attorney; Brian M. Boynton, 

Principal Deputy Assistant Attorney General; United States 

Department of Justice, Washington, D.C.; for DefendantsAppellees.

Christopher P. Schandevel (argued) and Kristen K. 

Waggoner, Alliance Defending Freedom, Lansdowne, 
6 HUNTER V. USDOE

Virginia; David A. Cortman, Alliance Defending Freedom, 

Lawrenceville, Georgia; Ryan J. Tucker and Mark A. 

Lippelmann, Alliance Defending Freedom, Scottsdale, 

Arizona; John J. Bursch, Bursch Law PLLC, Caledonia, 

Michigan; Gene C. Schaerr (argued), Annika B. Barkdull, 

and Nicholas P. Miller I, Schaerr Jaffe LLP, Washington, 

D.C.; Herbert G. Grey, Herbert G. Grey Attorney at Law, 

Beaverton, Oregon; for Intervenor-Defendants-Appellees.

Rebecca B. Cassady, Richardson Wang LLP, Portland, 

Oregon; for Amici Curiae Dr. Rachel M. Schmitz, Dr. 

Meridith G.F. Worthen, Dr. Dawne Moon, and Five More 

Sociologists. 

Caitlin V. Mitchell, Johnson Johnson Lucas & Middleton 

PC, Eugene, Oregon; for Amicus Curiae Higher Education 

Researchers.

Christopher A. Perdue, Assistant Attorney General; 

Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, 

Oregon Attorney General; United States Department of 

Justice, Office of the Oregon Attorney General, Salem, 

Oregon; Rob Bonta, California Attorney General, United 

States Department of Justice, Office of the California 

Attorney General, Sacramento, California; William Tong, 

Connecticut Attorney General, United States Department of 

Justice, Office of the Connecticut Attorney General, 

Hartford, Connecticut; Brian L. Schwalb, District of 

Columbia Attorney General, United States Department of 

Justice, Office of the District of Columbia Attorney General, 

Washington, D.C.; Philip J. Weiser, Colorado Attorney 

General, United States Department of Justice, Office of the 

Colorado Attorney General, Denver, Colorado; Kathleen 

Jennings, Delaware Attorney General, United States 

Department of Justice, Office of the Delaware Attorney 
HUNTER V. USDOE 7

General, Wilmington, Delaware; Anne E. Lopez, Hawaii 

Attorney General, United States Department of Justice, 

Office of the Hawaii Attorney General, Honolulu, Hawaii; 

Aaron M. Frey, Maine Attorney General, United States 

Department of Justice, Office of the Maine Attorney 

General, Augusta, Maine; Andrea Joy Campbell, 

Commonwealth of Massachusetts Attorney General, United 

States Department of Justice, Office of the Commonwealth 

of Massachusetts Attorney General, Boston, Massachusetts; 

Keith Ellison, Minnesota Attorney General, United States 

Department of Justice, Office of the Minnesota Attorney 

General, St. Paul, Minnesota; Matthew J. Platkin, New 

Jersey Attorney General, United States Department of 

Justice, Office of the New Jersey Attorney General, Trenton, 

New Jersey; Michelle A. Henry, Pennsylvania Attorney 

General, United States Department of Justice, Office of the 

Pennsylvania Attorney General, Harrisburg, Pennsylvania; 

Charity R. Clark, Vermont Attorney General, United States 

Department of Justice, Office of the Vermont Attorney 

General, Montpelier, Vermont; Kwame Rauol, Illinois 

Attorney General, United States Department of Justice, 

Office of the Illinois Attorney General, Chicago, Illinois; 

Anthony G, Brown, Maryland Attorney General, United 

States Department of Justice, Office of the Maryland 

Attorney General, Baltimore, Maryland; Dana Nessel, 

Michigan Attorney General, United States Department of 

Justice, Office of the Michigan Attorney General, Lansing, 

Michigan; Letitia James, New York Attorney General, 

United States Department of Justice, Office of the New York 

Attorney General, New York, New York; Aaron D. Ford, 

Nevada Attorney General, United States Department of 

Justice, Office of the Nevada Attorney General, Carson City, 

Nevada; Peter F. Neronha, Rhode Island Attorney General, 
8 HUNTER V. USDOE

United States Department of Justice, Office of the Rhode 

Island Attorney General, Providence, Rhode Island; Robert 

W. Ferguson, Washington Attorney General, United States 

Department of Justice, Office of the Washington Attorney 

General, Olympia, Washington; for Amicus Curiae Oregon 

and 19 Other States.

Eli J. Hare, DiCello Levitt LLP, Birmingham, Alabama; 

Amy Keller, DiCello Levitt LLP, Chicago, Illinois; David A. 

Straite, DiCello Levitt LLP, New York, New York; for 

Amici Curiae Five LGBTQ+ Student Leaders at Private 

Religious Universities.

Jeremy M. Creelan, Rémi J.D. Jaffré, and Owen W. Keiter, 

Jenner & Block LLP, New York, New York; Michelle S. 

Kallen, Jenner & Block LLP, Washington, D.C.; for Amici 

Curiae Dr. H.L. Himes and Dr. Theresa Stueland Kay.

Eric C. Rassbach and Daniel L. Chen, The Hugh and Hazel 

Darling Foundation Religious Liberty Clinic, Pepperdine 

University, Caruso School of Law, Malibu, California; for 

Amicus Curiae the Jewish Coalition for Religious Liberty.

David M. Andersen, Steven M. Sandberg, and Madelyn L. 

Blanchard, Brigham Young University, Office of the 

General Counsel, Provo, Utah; for Amici Curiae Association 

of Catholic Colleges and Universities, Brigham Young 

University, and Thirteen Additional Religious Colleges and 

Universities.

Alan J. Reinach, Church State Council, Westlake Village, 

California; for Amici Curiae Seven Scholars and 

Researchers and Church State Council.
HUNTER V. USDOE 9

OPINION

M. SMITH, Circuit Judge:

Title IX, a landmark law prohibiting gender 

discrimination at federally funded educational institutions, 

carves out an exception for religious institutions whose 

tenets mandate gender-based discrimination. 20 U.S.C. 

§ 1681(a). Plaintiffs are lesbian, gay, bisexual, transgender, 

and/or nonbinary (LGBTQ+) students who applied to or 

attended religious institutions and alleged that they 

experienced discrimination on the basis of their sexuality or 

gender identity. They brought suit against the Department 

of Education (Department), claiming that Title IX’s religious 

exemption violates the equal protection guarantee of the 

Fifth Amendment and establishes a religion in violation of 

the First Amendment. They also challenge the Department’s 

implementing regulations of Title IX as arbitrary and 

capricious under the Administrative Procedure Act (APA). 

The district court dismissed the complaint and denied leave 

to amend on all claims. 

This case addresses, among other issues, the question of 

whether Congress’s attempt to balance the important 

interests of religious freedom and gender-based equality 

violated the Constitution. Because we hold that Congress 

did not exceed its constitutional boundaries, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

I. Statutory and Regulatory Background 

Title IX prohibits certain educational institutions from 

receiving federal funding if they exclude, deny benefits to, 

or subject to discrimination any person “on the basis of sex.” 

20 U.S.C. § 1681(a). We have recently interpreted this 
10 HUNTER V. USDOE

provision to prevent federally funded educational 

institutions from discriminating against gay or transgender 

students. See Grabowski v. Ariz. Bd. of Regents, 69 F.4th 

1110, 1116 (9th Cir. 2023); see also Bostock v. Clayton 

County, 590 U.S. 644, 660 (2020) (“[I]t is impossible to 

discriminate against a person for being homosexual or 

transgender without discriminating against that individual 

based on sex” in the context of Title VII.). Title IX does not 

prohibit discrimination, however, when an educational 

institution “is controlled by a religious organization if the 

application of [Title IX] would not be consistent with the 

religious tenets of such organization.” 20 U.S.C. 

§ 1681(a)(3). 

The Department, the agency responsible for providing 

federal financial assistance pursuant to Title IX, promulgates

implementing regulations that describe appropriate methods 

for invoking this religious exemption. See 34 C.F.R. 

§ 106.12. The first regulations implementing Title IX 

provided that “[a]n educational institution which wishes to 

claim the [religious] exemption . . . shall do so by submitting 

in writing to [the Assistant Secretary for Civil Rights (the 

Assistant Secretary)] a statement . . . identifying the 

provision of [the Title IX implementing regulations] which 

conflict with a specific tenet of the religious organization.” 

40 Fed. Reg. 24128, 24129 (June 4, 1975). 

Although the 1975 regulation appears to require a 

writing invoking the exception in advance of an institution 

claiming the exception in an individual case, long-standing 

Department practice indicates that submitting a writing was 

only one permissive way for a religious institution to claim 

the exception. See 83 Fed. Reg. 61462, 61482 (Nov. 29, 

2018) (providing that, consistent with “longstanding 

Department practice,” “[t]he statutory text of Title IX offers 
HUNTER V. USDOE 11

an exemption to religious entities without expressly 

requiring submission of a letter”). 

In 2020, the Department amended the Title IX 

regulations to clarify that institutions are not required to 

submit a written statement prior to invoking the exemption. 

See Nondiscrimination on the Basis of Sex in Education 

Programs or Activities Receiving Federal Financial 

Assistance, 85 Fed. Reg. 30026, 30031, 30475–82 (May 19, 

2020) (the August 2020 Rule, the 2020 Rule, or the Rule). 

The revised regulation provides that an institution “may” 

submit a written request to the Assistant Secretary requesting 

an exemption. 34 C.F.R. § 106.12(b) (emphasis added). The 

regulation also specifies that the institution “may . . . raise 

its exemption” after the Department notifies the institution 

that it is under investigation for noncompliance. Id.

II. Factual and Procedural Background 

Plaintiffs are LGBTQ+ students who applied to, 

attended, or currently attend religious colleges and 

universities that receive federal funding. They allege that 

religious institutions discriminated against them on the basis 

of sex, specifically due to their sexual orientations and 

gender identities, by, inter alia, subjecting them to discipline, 

rejecting their applications for admission, or rescinding their 

admissions. 

Thirty-three Plaintiffs sued the Department in March 

2021. Seven new Plaintiffs later joined the original thirtythree. They alleged several causes of action against the 

Department: (1) a Fifth Amendment substantive due process 

and equal protection claim, (2) two claims under the First 

Amendment alleging violations of the Establishment Clause 

and deprivations of freedom of religion, speech, assembly, 

and association, (3) a claim under the APA challenging the 
12 HUNTER V. USDOE

2020 Rule, and (4) a claim under the Religious Freedom 

Restoration Act. 

Between June and August of 2021, thirty-five of the 

Plaintiffs filed Title IX administrative complaints. On 

August 5, 2021, Plaintiffs moved for a temporary restraining 

order, which the district court denied on August 30, 2021. 

Plaintiffs also moved for a preliminary injunction. The 

Department moved to dismiss the First Amended Complaint 

(FAC). Later, intervenors, including the Council for 

Christian Colleges and Universities (CCCU) and several 

private religious schools (Religious Schools) (together, the 

Intervenors, and with the Department, the Defendants), filed 

a separate, joint motion to dismiss. 

The district court held a three-day evidentiary hearing on 

the preliminary injunction in November 2021. On 

December 2, 2021, Plaintiffs moved to amend the FAC to 

(1) add factual allegations that Plaintiffs filed administrative 

complaints, (2) adjust the prayer for relief to be consistent 

with their motion for a preliminary injunction, and 

(3) include eight new plaintiffs. 

On January 12, 2023, the district court denied Plaintiffs’ 

motion for preliminary injunction and dismissed the FAC 

with prejudice. Relevant here, the district court dismissed 

the APA claim for lack of Article III standing and dismissed 

both the Fifth Amendment equal protection claim and First 

Amendment Establishment Clause claim for failure to state 

a claim. Because the district court found that amendment 

would not cure the FAC’s defects, it denied Plaintiffs’ 

pending motion to file a Second Amended Complaint 

(SAC). 

Plaintiffs timely appealed the district court’s dismissal of 

the First Amendment, APA, and Fifth Amendment claims 
HUNTER V. USDOE 13

and argue that the district court erred in denying them leave 

to amend. 

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. 

§§ 1331, 1361, 2201, 2202, and 5 U.S.C. § 702. We have 

appellate jurisdiction pursuant to 28 U.S.C. § 1291. We 

review de novo a district court’s grant of a motion to dismiss. 

Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). We 

review a denial of a motion to amend a complaint for abuse 

of discretion. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 

1087 (9th Cir. 2002). 

ANALYSIS

I. Establishment Clause Claim

The relevant portion of the First Amendment provides 

that, “Congress shall make no law respecting an 

establishment of religion.” U.S. CONST. amend. I. The 

district court dismissed Plaintiffs’ claim that the Title IX 

exemption violates the Establishment Clause but, in doing 

so, applied the then-abandoned legal standard articulated in 

Lemon v. Kurtzman, 403 U.S. 602 (1971). On appeal, 

Plaintiffs ask us to vacate the district court’s order and 

remand for consideration of the Establishment Clause claim 

under Kennedy v. Bremerton School District, 597 U.S. 507 

(2022), in the first instance. They argue in the alternative 

that, on the merits, the exemption is “inconsistent with the 

historical understanding of the Establishment Clause 

because it discriminates between religious sects and is 

available only to some religious groups,” “prefer[s] religion 

to irreligion,” and “conscripts federal employees as 

ecclesiastical inquisitors.” 
14 HUNTER V. USDOE

The Department asks us to hold that Plaintiffs invited the 

error and thus cannot succeed on appeal. Similarly, the 

Religious Schools ask us to hold that Plaintiffs waived the 

argument. We decline both requests and hold that, on the 

merits, the Title IX exemption does not violate the 

Establishment Clause. 

A. We decline to apply the invited error and waiver 

doctrines. 

We begin by briefly surveying the muddled background 

that underlies our evaluation of this procedural issue. For 

decades, courts deciding Establishment Clause violations 

did so under the three-part test set forth in Lemon. There, 

the Supreme Court “attempted a ‘grand unified theory’ for 

assessing Establishment Clause claims.” Kennedy, 597 U.S. 

at 534 (quoting Am. Legion v. Am. Humanist Ass’n, 588 U.S. 

29, 84 (2019) (Gorsuch, J., concurring in the judgment)). 

The Lemon test “called for an examination of a law’s 

purposes, effects, and potential for entanglement with 

religion.” Id. (citing Lemon, 403 U.S. at 612–13). On 

August 9, 2021, when the Department moved to dismiss 

Plaintiffs’ Establishment Clause claim, the Department 

asked the district court to apply Lemon. 

The Intervenors took a different approach and asked the 

court to apply an originalism-based test. They explained 

why the exemption was “consistent with history and 

tradition,” noting that “[s]ince 1971, courts have 

sporadically applied . . . Lemon.” The Intervenors argued

that “the Supreme Court has largely discarded Lemon and 

adopted an approach that ‘looks to history for guidance’—

asking whether a particular action is consistent with 

‘historical practices and understandings.’” (quoting Am. 

Legion, 588 U.S. at 61 (plurality opinion)). 
HUNTER V. USDOE 15

In response to Intervenors’ motion to dismiss, Plaintiffs 

were silent on whether and how a history and tradition test 

would apply. Hunter v. Dep’t of Educ., No. 6:21-cv-00474, 

Dkt. 143 at 20. Then, on June 27, 2022, the Supreme Court 

issued Kennedy, clarifying that it “long ago abandoned 

Lemon and its endorsement test offshoot.” 597 U.S. at 534. 

The Court explained that, instead, “the Establishment Clause 

must be interpreted by “reference to historical practices and 

understandings,” drawing the line between permissible and 

impermissible government action in a way that “accord[s]

with history and faithfully reflect[s] the understanding of the 

Founding Fathers.” Id. at 535–36 (quoting Town of Greece 

v. Galloway, 572 U.S. 565, 576, 577 (2014) (cleaned up)). 

The Intervenors filed a notice of supplemental 

authorities before the district court, alerting it to the recent 

Kennedy decision and explaining that “courts applying 

Lemon do so in error.” Hunter, 6:21-cv-00474, Dkt. 172 at 

3–4. Plaintiffs did not respond to the notice’s arguments 

about Kennedy, even though they represented to the district 

court that they would do so in additional briefing. See 

generally id. At oral argument, Plaintiffs represented to us 

that they did not file a response on the issue because, prior 

to deciding Defendants’ motions to dismiss, the district court 

expressed its frustration with the case’s excessive briefing. 

Without Plaintiffs’ response to Kennedy, the district court 

issued its order granting the Defendants’ motions to dismiss 

on January 12, 2023, applied the Lemon test without 

mentioning Kennedy, and noted that “Plaintiffs [do not] 

dispute that the three-prong test announced in Lemon

applies.” 

The district court erred by applying the Lemon test 

without reference to the historical practices and 

understandings of the Establishment Clause. See Kennedy, 
16 HUNTER V. USDOE

597 U.S. at 535. The district court ruled on the Defendants’ 

motions to dismiss six months after the Supreme Court 

issued Kennedy, which clearly instructed that Lemon was 

“long ago abandoned.” Id. at 534. Thus, the district court 

had the benefit of Kennedy’s instruction, with notice from 

the Intervenors about its application to the case, see Hunter, 

6:21-cv-00474, Dkt. 172 at 3–4, but ignored it. In fact, the 

district court order does not cite to or explicitly consider 

Kennedy at all. 

Despite this error, the Department asks us to decline to 

address the Establishment Clause claim on appeal because 

“[P]laintiffs did not advance any arguments in district court 

based on Kennedy or the historical-analysis test, which 

existed prior to Kennedy.” Thus, according to the 

Department, the panel should apply the invited error 

doctrine. Id. 

The invited error doctrine states that a party “may not 

complain on review of errors below for which he is 

responsible.” Sovak v. Chugai Pharm. Co., 280 F.3d 1266, 

1270 (9th Cir. 2002) (quoting Deland v. Old Republic Life 

Ins. Co., 758 F.2d 1331, 1336–37 (9th Cir. 1985)). It applies 

where a party “introduced, or directly set in motion, the error 

of which he complain[s].” United States v. Magdaleno, 43 

F.4th 1215, 1220 (9th Cir. 2022). The Ninth Circuit has 

“never applied the invited error doctrine in a circumstance” 

where “there is no indication that [the party] introduced the 

alleged error.” Id. at 1220. 

There is no indication that Plaintiffs introduced the error 

here. As explained above, the Department asked the district 

court to apply Lemon when it initially moved to dismiss in 

August 2021. Although the Intervenors asked the district 

court to apply the historical analysis test in their motion to 
HUNTER V. USDOE 17

dismiss, that test was not the law of the circuit at the time. 

See Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1017 

(9th Cir. 2021) (applying objective observer entanglement 

test under Santa Fe Independent School District v. Doe, 530 

U.S. 290 (2000)), rev’d, 597 U.S. 507 (2022). Plaintiffs 

responded to Intervenors’ motion without reference to the 

historical analysis test and remained silent on whether it 

should apply. See Hunter v. Dep’t of Educ., No. 6:21-cv00474, Dkt. 143 at 20. And Plaintiffs again remained silent 

when Intervenors notified the district court that the historical 

practices test should apply after Kennedy. Because Plaintiffs 

did not “introduce” or “directly set [the error] in motion,” the 

invited error doctrine does not apply here. See Magdaleno, 

43 F.4th at 1220.1 

We also decline to apply the waiver doctrine. Issues “not 

presented to the trial court cannot generally be raised for the 

first time on appeal.” United States v. Flores-Payon, 942 

F.2d 556, 558 (9th Cir. 1991). This is true whether the 

argument is one “in support of a motion to dismiss or an 

argument establishing that dismissal is inappropriate.” 

Zixiang Li v. Kerry, 710 F.3d 995, 1000 n.4 (9th Cir. 2013) 

(quoting G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 

534, 538 (7th Cir. 2012)). Several exceptions apply, 

including if (1) there are “exceptional circumstances” 

explaining why the issue was not raised below, (2) “the new 

issue arises while the appeal is pending because of a change 

in the law,” (3) “the issue presented is purely one of law and 

1 The only case the Department refers to, Sovak v. Chugai 

Pharmaceutical Company, comes out against its position. 280 F.3d at 

1270. There, we held that it was not invited error where the district court 

erroneously applied state law when it should have applied federal law. 

Id. The appealing party correctly asked the district court to apply federal 

law, so the invited error doctrine did not apply. See id.
18 HUNTER V. USDOE

the opposing party will suffer no prejudice as a result of the 

failure to raise the issue in the trial court,” or (4) “plain error 

has occurred and an injustice might otherwise result.” 

Flores-Payon, 942 F.2d at 558. The issue presented fits 

under the third exception. The district court’s analysis of the 

Establishment Clause claim under Kennedy was purely one 

of law. Defendants suffered no prejudice from the Plaintiffs’ 

failure to submit additional briefing because the Intervenors 

had notified the district court of Kennedy’s existence and 

application to the case. Defendants had the opportunity to 

explain why they should win under a history and tradition 

test several times, including prior to Kennedy’s issuance and 

in the Intervenors’ notice to the district court. Thus, we 

proceed to the merits. 

B. The exemption does not violate the Establishment 

Clause under the historical practices and 

understanding test. 

To determine whether government action violates the 

Establishment Clause, the panel must “focus[] on original 

meaning and history.” Kennedy, 597 U.S. at 536 (citing 

Town of Greece, 572 U.S. at 575). Any practice that was 

“accepted by the Framers and has withstood the critical 

scrutiny of time and political change” does not violate the 

Establishment Clause. Town of Greece, 572 U.S. at 577. 

We begin with the historical practices that help to inform 

the original meaning of the Establishment Clause in its 

application to religious exemptions. “As history must play 

such a vital part in understanding what the Bill of Rights 

requires, it is . . . appropriate to note that at the time this 

charter of freedom was written, no massive programs of 

federal aid to the public existed.” Kong v. Scully, 341 F.3d 

1132, 1139 (9th Cir. 2003). Because no identical exemption 
HUNTER V. USDOE 19

existed at the Founding, we must use the historical analogues 

that are available. 

The Department contends that such historical analogues 

may be found in the “substantial evidence of a lengthy 

tradition of . . . exemptions for religion” at or near the time 

of the Founding. (quoting Gaylor v. Mnuchin, 919 F.3d 420, 

427–36 (7th Cir. 2019); Bd. of Educ. of Kiryas Joel Vill. Sch. 

Dist. v. Grumet, 512 U.S. 687, 723 (1994) (Kennedy, J., 

concurring in judgment)). Specifically, it refers us to tax 

exemptions for religious organizations as far back as 1802. 

See Gaylor, 919 F.3d at 427–36; see also Gibbons v. District 

of Columbia, 116 U.S. 404 (1886)). 

While there is certainly a long history of tax exemptions 

for religious organizations dating to the early Republic, 

Plaintiffs argue that those exemptions are not analogous to a 

statutory exemption to a requirement for voluntary 

acceptance of federal funding. Plaintiffs argue that Title IX 

only applies to institutions who willingly accept federal 

funding. In other words, those who do not wish to comply 

with Title IX need not accept funding and thus are not 

burdened by the government. According to Plaintiffs, the 

exemption then violates the Establishment Clause because it 

acts as a subsidy to religious institutions. 

Given the dearth of historical equivalents, however, tax 

exemptions are the most analogous case to Title IX’s 

statutory exemption. As we described them in Kong, tax 

exemptions for religious institutions are really “[s]ubsid[ies]

of buildings of worship,” which is “a universal practice of 

state and federal government.” 341 F.3d at 1139 (citing 

Walz v. Tax Comm’n, 397 U.S. 664 (1970)). Just as a school 

is not required to accept federal funding, a religious 

institution is not required to own property. Even so, 
20 HUNTER V. USDOE

religious institutions are constitutionally exempted from 

paying property taxes. Both the statutory exemption to Title 

IX and property tax exemptions operate as a financial benefit 

to non-secular entities that similarly situated secular entities 

do not receive. And they were deemed constitutional 

without a requirement that the exemption only apply if the 

tax conflicted with a specific tenet of the religion. Even if 

Title IX’s exemption is a “benefit” instead of a “burden,” 

“[a] variety of benefits have been bestowed by government 

on religious practices and either have been unchallenged or 

passed constitutional muster without fatal compromise of 

principle.” Id. at 1139. Absent additional historical 

evidence—and Plaintiffs point us to none here—the history 

of tax exemptions near the time of the Founding suggests 

that the statutory exemptions that operate as a subsidy to 

religious institutions do not violate the Establishment Clause

according to its original meaning. 

Having considered the history of religious exemptions at 

or near the Founding, the history and tradition test requires 

us to look next to the “uninterrupted practice” of a law in our 

nation’s traditions. Kennedy, 597 U.S. at 536 (quoting Walz, 

397 U.S. at 680). The Department identifies a relevant 

tradition in “modern legislative efforts to accommodate 

religious practice.” See, e.g., Cutter v. Wilkinson, 544 U.S. 

709, 719–20 (2005) (prisoner religious accommodations); 

Corp. of Presiding Bishop of Church of Jesus Christ of 

Latter-day Saints v. Amos, 483 U.S. 327, 334 (1987) (Title 

VII exemption); Walz, 397 U.S. at 672–80 (religious 

property tax exemption); Zorach v. Clauson, 343 U.S. 306, 

315 (1952) (released time program); Arver v. United States, 

245 U.S. 366, 376 (1918) (draft exemption); Goldman v. 

United States, 245 U.S. 474, 476 (1918) (same); Kong, 341 

F.3d at 1139–40 (payments under Medicare and Medicaid 
HUNTER V. USDOE 21

Acts for the nonmedical care of persons whose religious 

tenets lead them to reject medical services); Droz v. Comm’r, 

48 F.3d 1120, 1124 (9th Cir. 1995) (Social Security tax 

exemption); Int’l Ass’n of Machinists & Aerospace Workers, 

Lodge 751 v. Boeing Co., 833 F.2d 165, 170–71 (9th Cir. 

1987) (Title VII religious accommodation); Tooley v. 

Martin-Marietta Corp., 648 F.2d 1239, 1244–45 (9th Cir. 

1981) (similar). 

Though most of these cases were decided under the 

Lemon test, they evince a continuous, century-long practice

of governmental accommodations for religion that the 

Supreme Court and our court have repeatedly accepted as 

consistent with the Establishment Clause. The examples 

provided by the Department demonstrate that religious 

exemptions have “withstood the critical scrutiny of time and 

political change.” Town of Greece, 572 U.S. at 577. And 

given that this exact law did not exist at the Founding, that 

more recent (albeit, still lengthy) tradition is of greater

salience.

Plaintiffs make several arguments that, despite the long 

tradition of statutory religious accommodations, the Title IX 

exemption still violates the Establishment Clause. First, 

Plaintiffs argue that the exemption prefers religion to 

irreligion, impermissibly “singling out religious institutions 

for special benefits.” We disagree. In Amos, the Supreme 

Court held that Title VII’s similar exemption for religious 

institutions from religious non-discrimination in 

employment, even when the job function is secular, does not 

violate the Establishment Clause. 483 U.S. at 338. While 

Amos was decided under Lemon and does not reference 

historical practices or understandings, it does make the 

logical point that no religious accommodation could stand if 

we held that this type of accommodation prefers religion 
22 HUNTER V. USDOE

over irreligion. See id; Cutter, 544 U.S. at 720 (holding that 

the Religious Land Use and Institutionalized Persons Act’s 

(RLUIPA) prisoner religious accommodation provision was 

compatible with the Establishment Clause “because it 

alleviates exceptional government-created burdens on 

private religious exercise”). Given that the government 

“sometimes must” accommodate religion, the exemption 

does not prefer religion to irreligion for simply carving 

religious behavior out of the statute. 

The cases cited by Plaintiffs do not discuss the historical 

practices and understanding of the Establishment Clause as 

relevant here. See Kiryas Joel, 512 U.S. at 696 (delegating 

public school authority to religious group is 

unconstitutional); Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 

15 (1989) (exempting religious publications from sales tax 

failed under the Lemon test); Torcaso v. Watkins, 367 U.S. 

488, 490–91 (1961) (requiring public officers to declare a 

belief in God is similar to pre-Founding religious oath 

requirements). In fact, Kiryas Joel makes clear that the state 

need not “be oblivious to impositions that legitimate 

exercises of state power may place on religious belief and 

practice.” 512 U.S. at 705. The government “may (and 

sometimes must) accommodate religious practices.” Id.

(quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 

480 U.S. 136, 144 (1987)). 

Second, Plaintiffs argue that the exemption 

“discriminates between religious sects and is available only 

to some religious groups—those whose tenets are 

inconsistent with an application of Title IX.” This argument 

fails. The statute facially applies to any religious 

organization for which the religious tenets would not be 

consistent with the application of Title IX. 20 U.S.C. 

§ 1681(a)(3). See Cutter, 544 U.S. at 724 (“RLUIPA . . . 
HUNTER V. USDOE 23

confers no privileged status on any particular religious sect, 

and singles out no bona fide faith for disadvantageous 

treatment.”). And there is no evidence in the record that the 

exemption here “was drafted with the explicit intention of 

including particular religious denominations and excluding 

others.” Larson v. Valente, 456 U.S. 228, 254 (1982). Under 

Plaintiffs’ view, the only constitutional alternative would be 

to exempt any religious institution from the statute without 

regard to its tenets—a less narrowly tailored law. The 

Constitution does not require such a result. 

Third, Plaintiffs contend that the exemption 

impermissibly “conscripts federal employees as 

ecclesiastical inquisitors, charged with ascertaining the 

‘religious tenets’ of each school and determining whether a 

particular application of Title IX is consistent with the 

teachings of that denomination.” 

The Department must “accept the ecclesiastical 

decisions of church tribunals as it finds them.” Serbian E. 

Orthodox Diocese v. Milivojevich, 426 U.S. 696, 698, 713 

(1976) (overturning a state supreme court decision holding 

that a church did not comply with its own laws and 

regulations in removing the respondent as bishop of the 

church); see also Our Lady of Guadalupe Sch. v. MorrisseyBerru, 591 U.S. 732, 761–62 (2020) (holding that “[w]hen a 

school with a religious mission entrusts a teacher with the 

responsibility of educating and forming students in the faith, 

judicial intervention into disputes between the school and the 

teacher threatens the school’s independence in a way that the 

First Amendment does not allow”); Presbyterian Church v.

Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 

U.S. 440, 447, 450 (1969) (“[T]he decisions of the proper 

church tribunals on matters purely ecclesiastical, although 
24 HUNTER V. USDOE

affecting civil rights, are accepted in litigation before the 

secular courts as conclusive . . . .”).

It clearly does so. Here, when a school claims an 

exemption, the Department must make two 

determinations—whether the school is controlled by a 

religious organization and whether Title IX would conflict 

with the religious tenets of the controlling organization. 20 

U.S.C. § 1681(a)(3). The Department has, as pleaded in the 

FAC, “never rejected an educational institution’s assertion 

that it is controlled by a religious organization” and “never 

denied a religious exemption when a religious educational 

institution asserts a religious objection.” 

We are not persuaded that this type of facially neutral 

religious accommodation violates the Establishment Clause. 

II. Equal Protection Claim

The relevant portion of the Fifth Amendment provides 

that “[n]o person shall . . . be deprived of life, liberty, or 

property, without due process of law,” U.S. CONST. amend. 

V, and ensures equal protection of the law. Buckley v. Valeo, 

424 U.S. 1, 93 (1976) (per curiam), abrogated on other 

grounds. Plaintiffs contend that the Title IX exemption 

violates this equal protection guarantee because it “targets 

Americans for disfavored treatment based on their sex, 

including targeting based on sexual orientation and gender 

identity.” They claim that the exemption is facially 

discriminatory, motivated by discriminatory animus, and 

unconstitutional as applied to Plaintiffs. Specifically, they 

argue that we should apply intermediate scrutiny and hold 

that the exemption does not meet that high standard. 

Defendants, on the other hand, argue that we should apply 

rational basis review, which they contend the exemption 

easily withstands. 
HUNTER V. USDOE 25

Because the exemption would survive the more 

demanding intermediate scrutiny standard, we need not 

decide which standard applies. A statute passes intermediate 

scrutiny when it “serve[s] important governmental 

objectives” and is “substantially related to achievement of 

those objectives.” Craig v. Boren, 429 U.S. 190, 197 (1976). 

The exemption seeks to accommodate religious educational 

institutions’ free exercise of religion. The free exercise of 

religion is “undoubtedly, fundamentally important.” 

California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018); see 

also Amos, 483 U.S. at 339 (noting that a “legitimate 

purpose” includes “limiting governmental interference with 

the exercise of religion”); Thomas v. Rev. Bd. of Ind. Emp.

Sec. Div., 450 U.S. 707, 717–18 (1981) (acknowledging that 

denying a benefit to a person due to conduct mandated by 

his religious beliefs constitutes a burden on the free exercise 

of religion). 

The exemption substantially relates to the achievement 

of limiting government interference with the free exercise of 

religion. As the Department states, the “statutory limitations 

on its application ensure a substantial fit between [ends and] 

means.” It only exempts educational institutions 

(a) controlled by religious institutions and (b) only to the 

extent that a particular application of Title IX would not be 

consistent with a specific tenet of the controlling religious 

organization. See 20 U.S.C. § 1681(a)(3). The exemption 

does not give a free pass to discriminate on the basis of sex 

to every institution; it contains limits that ensure that Title 

IX is not enforced only where it would create a direct conflict 

with a religious institution’s exercise of religion. See id. 

Thus, the exemption substantially relates to a
26 HUNTER V. USDOE

“fundamentally important” governmental interest. Azar, 

911 F.3d at 582.2 

As we have previously expressed sitting en banc: “We 

do not in any way minimize the ostracism that LGBTQ+ 

students may face because of certain religious views. . . .” 

Fellowship of Christian Athletes v. San Jose Unified Sch. 

Dist. Bd. of Educ., 82 F.4th 664, 695 (9th Cir. 2023) (en 

banc). We acknowledge that the discrimination LGBTQ+ 

individuals face (both on religious campuses and outside of 

them) is invidious and harmful. However, “the First 

Amendment’s Free Exercise Clause guarantees protection of 

those religious viewpoints even if they may not be found by 

many to be ‘acceptable, logical, consistent, or 

comprehensible.’” Id. (quoting Fulton v. City of 

Philadelphia, 593 U.S. 522, 532 (2021)). Title IX’s 

religious exemption does not violate the Fifth Amendment’s

Equal Protection guarantee. 

III. APA Claim 

The district court appropriately dismissed Plaintiffs’ 

APA claim for lack of Article III standing. To establish 

standing, a plaintiff “must demonstrate (i) that she has 

suffered or likely will suffer an injury in fact, (ii) that the 

injury likely was caused or will be caused by the defendant, 

and (iii) that the injury likely would be redressed by the 

requested judicial relief.” FDA v. All. for Hippocratic Med., 

602 U.S. 367, 380 (2024). 

In the FAC, Plaintiffs claimed that the Department’s 

August 2020 Rule was arbitrary and capricious under the 

APA because it “eliminated transparency and notice for 

2 We decline to address the Religious Schools’ argument that the

exemption is required by the First Amendment’s Free Exercise clause. 
HUNTER V. USDOE 27

students applying to and enrolled at religious educational 

institutions that discriminate based on sexual orientation or 

gender identity” by removing the language from the prior 

rule that, according to Plaintiffs, required a submitted letter 

before requesting an exemption in an individual case. They 

further claim that the institutions “rely on the August 2020 

Final Rule to maintain vague and indeterminate policies and 

practices with respect to compliance with Title IX as applied 

to LGBTQ+ students,” and that the Rule “exposes more 

LGBTQ+ students to the risk of abuse, harassment and loss 

of their constitutional rights at taxpayer-funded, religious 

colleges and universities.” On appeal, Plaintiffs underscore 

that their injury rests on the lack of advance notice to the 

students applying to and attending the religious schools, 

rather than on any injury from the schools’ increased 

likelihood to qualify for an exemption. In other words, 

Plaintiffs do not contend on appeal that the August 2020 

Rule made it any more likely that the schools could 

permissibly discriminate under Title IX, only that it deprived 

the Plaintiffs of advance notice that their schools could or 

would discriminate against them. 

The district court found that the Plaintiffs failed to plead 

causation, because after “review[ing] Plaintiffs’ evidence in 

the form of expert witnesses, hours of hearing testimony, 

hundreds of exhibits, multitudes of declarations, and legal 

briefing,” it concluded that Plaintiffs did not allege that the 

2020 Rule contributed to universities “conceal[ing] their 

discriminatory practices from students.” Specifically, the 

district court held that “Plaintiffs do not allege how any of 

the schools they attend are more likely to qualify for a 

religious exemption now, under the 2020 [R]ules they 

challenge, than they would have been previously” because 

even under the prior rule, the Department “never rejected an 
28 HUNTER V. USDOE

educational institution’s assertion that it is controlled by a 

religious organization.” Finally, the district court concluded 

that Plaintiffs’ requested relief would not redress their 

alleged injuries, as they did not plead that invalidation of the 

2020 Rule would “alter either the behavior of the religious 

schools or the outcomes of discrimination complaints or 

religious exemption requests filed with Defendants under 

Title IX.” 

We need not reach the question of whether Plaintiffs 

suffered injury in fact because we hold that the August 2020 

Rule did not cause their injuries. Causation is “ordinarily 

substantially more difficult to establish” “when (as here) a 

plaintiff challenges the government’s ‘unlawful regulation 

(or lack of regulation) of someone else.” Id. at 382 (quoting 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)). 

To thread the causation needle in cases where a regulation 

does not regulate plaintiffs, they must show that the 

regulated third parties “will likely react in predictable ways” 

that in turn will likely injure plaintiffs. Id. at 383. Those 

links must not be “too speculative or attenuated.” Id. There 

are a variety of “familiar circumstances where government 

regulation of a third-party . . . may be likely to cause injury 

in fact to an unregulated plaintiff.” Id. at 384. Evidence of 

injury that existed prior to a challenged rule cannot suffice 

to show Article III standing. California v. Texas, 593 U.S. 

659, 677 (2021). 

Although Plaintiffs argue that students would have 

chosen to apply to or attend different schools if they had 

advance notice of the schools’ discriminatory policies, 

Plaintiffs do not refer us to any student who applied to and 

accepted admission to attend their religious institution after
HUNTER V. USDOE 29

the 2020 Rule.3 Nor does any Plaintiff allege that the August 

2020 Rule caused any school’s change in policy or specific 

instance of discrimination. To cite a few examples, Plaintiff 

Zayn Silva was denied admission to his desired university 

six months prior to implementation of the August 2020 Rule,

while Plaintiff Kalie Hargrove re-enrolled in Lincoln 

Christian University in 2019, prior to the 2020 Rule, and 

does not allege that the August 2020 Rule induced the 

school’s discrimination against her for her transgender 

identity. As another example, Plaintiff Veronica Bonifacio 

Penales started attending Baylor University in 2019, prior to 

the 2020 Rule, and does not allege that any of Baylor’s 

policies changed after the Rule’s implementation. And in 

2017, Plaintiff Jonathan Jones began attending Azusa 

Pacific University, which rescinded its allowance of samesex dating in 2019, all prior to the 2020 Rule. 

Plaintiffs do not claim that any institution is more likely 

to obtain an exemption after the Rule. Nor do they contest 

that the prior practice of the Department was not to require a 

prior written statement from an institution before granting it 

an exemption. Thus, any student who began attending a 

religious university prior to the 2020 Rule was equally as 

likely to experience discrimination without recourse before 

and after the Rule went into effect. None of the allegations 

that Plaintiffs refer us to suggest that the Rule caused any 

individual Plaintiff harm. Indeed, the FAC states the 

3 Although there are 48 Plaintiffs alleging injury in the SAC, we include 

in our discussion only the individuals to whom the Plaintiffs cited in their 

briefing on appeal. We note, however, that all the Plaintiffs in both the 

operative FAC and the proposed SAC either experienced injury prior to 

the August 2020 Rule, had prior notice that their schools would 

discriminate against them, or failed to allege that the August 2020 Rule 

caused their schools to discriminate against them. 
30 HUNTER V. USDOE

opposite: that the Department has never, either before or 

after the August 2020 Rule, denied a religious exemption 

from a religious educational institution.4 

Plaintiffs’ argument that “at least some schools would 

not have discriminated until they had submitted written 

requests for exemptions” is too speculative. Plaintiffs would 

need to plead that they experienced institutional 

discrimination after the 2020 Rule and that the 2020 Rule 

caused that discrimination. They do not, so they cannot 

establish Article III standing.

IV. Motion to Amend

The district court did not abuse its discretion in denying 

Plaintiffs leave to amend the complaint. “Leave to amend 

may be denied if the proposed amendment is futile or would 

be subject to dismissal.” Wheeler v. City of Santa Clara, 894 

F.3d 1046, 1059 (9th Cir. 2018). None of Plaintiffs’ 

proposed amendments, give us reason to believe that they 

could plead that the exemption would not survive 

intermediate scrutiny, that they have evidence that the 

original understanding of the Establishment Clause would 

prohibit the Title IX exemption, or that any Plaintiff was 

injured because of the August 2020 Rule. 

4 Plaintiffs also allege that the August 2020 Rule “has emboldened 

schools that discriminate against LGBTQ+ students,” implying that 

more frequent or more severe discrimination is traceable to the Rule. 

Even assuming such an increase has occurred since the 2020 Rule took 

effect, Plaintiffs’ allegations that the Rule caused the increase are 

conclusory. They do not specify how the 2020 Rule emboldens

institutions—which are no more likely to receive exemptions today than 

before the Rule—to engage in additional discrimination. Plaintiffs’ 

assertions of an indirect emboldening effect are thus too speculative and 

attenuated to establish standing.
HUNTER V. USDOE 31

CONCLUSION

The judgment of the district court is AFFIRMED.