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Christian Legal Society's Law School Suit Defeated by 9th Cir.

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By Tanya Roth, Esq. on November 19, 2010 6:02 AM

This week, the Christian Legal Society tried to take one more bite of the apple, but was denied the chance by the 9th Circuit Court of Appeals. On November 17, the appeals court denied the group's attempt to raise the one issue the Supreme Court left them after handing the group a defeat in its case against U.C. Hastings School of the Law.

Early this summer, the Supreme Court found that Hastings' refusal to give funding or other school sanctioning to the CLS because it discriminated against non-believers and homosexuals did not violate the First Amendment rights of the group. In that ruling, reports Courthouse News Service, the Court sent the case back to the 9th Circuit Court of Appeals for a reconsideration of one issue: did Hastings selectively enforce the non-discrimination policy so as to actually discriminate against the CLS?

However, there was one requirement, the High Court reminded the parties. The issue of selective enforcement could only be heard on appeal if it had been preserved by the party who wished to raise it. That is, did the record show that CLS previously argued Hastings selectively enforced its rules to the detriment of the Society, or were they now only raising the issue because they had lost on all others?

The CLS attempted to argue that they had raised the selective enforcement issue all along, reports Courthouse News Service, but the three-judge panel of the 9th Circuit did not agree. The 9th Circuit wrote: "CLS's hindsight attempt to string together an argument from quotes scattered throughout its opening brief confirms that it made no pretext [selective enforcement] argument at all, much less 'specifically and distinctly.'"

As a result, the court found the group had not properly preserved its argument for appeal. Therefore, the 9th Circuit had no authority to review the case, or even send it back to a lower court for a hearing.

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