On remand from the Supreme Court (Christian Legal Society v. Martinez, No. 08-1371 (June 28, 2010)), the Ninth Circuit yesterday refused to consider the Christian Legal Society’s claim that UC-Hastings had selectively enforced its nondiscrimination policy on the ground that CLS had not raised the argument early enough in the proceeding. Christian Legal Society v. Wu, No. 06-15956 (9th Cir. Nov. 17, 2010):

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.” 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.” The Court then remanded with instructions for us to consider the pretext issue “if, and to the extent, it is preserved.” True to the Court’s instruction, we consider whether, and to what extent, CLS preserved the issue of selective enforcement. …

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.

• Chronicle of Higher Education, Federal Appeals Court Ends Christian Student Group’s Suit Against Law School
• Los Angeles Times, Appeals Court Ends Christian Group’s Attempt to Revive Law School Legal Challenge
• SCOTUS blog, CLS’s Legal Woes Continue