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Christian Legal Society v. Wu (9th Cir. - Nov. 17, 2010)

By Shaun Martin

Here's a per curiam opinion in a high profile case -- indeed, one on remand from the Supreme Court -- that's ruthlessly accurate and correct. 

Plaintiffs sued Hastings Law School arguing that its refusal to fund the Christian Legal Society violated the First Amendment.  The Ninth Circuit and Supreme Court rejected that argument. 

CLS also made an alternative argument in the Supreme Court that Hastings had applied its policies in an unconstitutional manner (the "pretext" argument).  The Supreme Court noted that none of the lower courts had expressed an opinion on this argument, so remanded the case for consideration of this argument "if, and to the extent, it is preserved."

The Ninth Circuit holds today that this argument wasn't preserved -- indeed, wasn't even made at all in the Ninth Circuit.  And is totally, completely, a thousand percent right.  Plaintiffs have extremely good advocates representing them.  They made a deliberate choice to raise only particular arguments.  They lost.  Their later claim that they raised additional arguments is simply untrue.  The Ninth Circuit gets this one exactly right.  It is a such a crush in this regard that plaintiff's counsel might even be a little embarrassed that they feel forced to argue otherwise.  Unless, of course, they've convinced themselves of the truth of their (totally erroneous) claims to the contrary.  Which, as we all know, happens all too often.

By the way, it's a per curiam -- and hence unsigned -- opinion, but it might as well be signed.  I'll eat my shorts if Judge Kozsinki isn't the author of this one.  Seriously.

Full post as published by California Appellate Report on November 17, 2010 (boomark / email).