Association of Christian Schools International Ex Rel. Tally v. Stearns , 362 F. App'x 640 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ASSOCIATION OF CHRISTIAN No. 08-56320
SCHOOLS INTERNATIONAL;
CALVARY CHAPEL CHRISTIAN D.C. No. 2:05-cv-06242-SJO-
SCHOOL, a Division of Calvary Chapel of MAN
Murrieta, Inc.; A. T., by and through
parent G. Tally (substituted for M.T., by
and through parent T. Taylor, by Order MEMORANDUM *
entered Nov. 14, 2006); J. G., by and
through parent A. Guzon, and T.C., by and
through parent J. Cherney (substituted for
C. Young, by Order entered Nov. 14,
2006); K. B., by and through his parent D.
Brodmann; G. S., by and through his
parent K. Shean; S. O., by and through her
parent D. Ono; W. L., by and through his
parent W. Lotherington,
Plaintiffs - Appellants,
v.
ROMAN STEARNS, in his official
capacity as Special Assistant to the
President; SUSAN WILBUR, in her
official capacity as Director of
Undergraduate Admissions; JUDY
SAKAKI, in her official capacity as
Associate Vice President for Student
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Academic Services (substituted for Dennis
Galligani); ROBERT C. DYNES, in his
official capacity as President of the
University of California; MARK
RASHID, in his official capacity as Chair
of Board of Admissions & Relations with
Schools (BOARS) (substituted for Michael
Brown,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted December 7, 2009
Pasadena, California
Before: HALL, THOMPSON and SILVERMAN, Circuit Judges.
The plaintiffs are the Association of Christian Schools International
(“ACSI”), Calvary Chapel Christian School (“Calvary”), and five Calvary students
(collectively, “the plaintiffs”). They allege that the University of California
(“UC”) admission policy, which involves UC’s review and approval of high school
courses in order to qualify applicants for UC admission, is unconstitutional under
the Free Speech, Free Exercise, Establishment, and Equal Protection Clauses. The
defendants, Roman Stearns, Susan Wilbur, Robert Dynes, Mark Rashid, and Judy
Sakaki (collectively, “the defendants”), are the UC employees responsible for
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developing and implementing the course approval policy. The district court
determined that UC’s policy was constitutional on its face and as-applied and
granted summary judgment in favor of the defendants on all claims. We have
jurisdiction under 28 U.S.C. § 1291 and we affirm.
I. The Level of Judicial Scrutiny
The Supreme Court has rejected heightened scrutiny where, as here, the
government provides a public service that, by its nature, requires evaluations of
and distinctions based on the content of speech. See United States v. American
Library Ass'n, Inc., 539 U.S. 194, 203-208 (2003) (“ALA”); Nat’l Endowment for
the Arts v. Finley, 524 U.S. 569, 580-87 (1998); Arkansas Educ. Television
Comm'n v. Forbes, 523 U.S. 666, 673-74 (1998). As a university, one of UC’s
“essential freedoms” is to “determine for itself on academic grounds . . . who may
be admitted to study.” Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 263
(1957) (Frankfurter, J., concurring). UC exercises that freedom by reviewing high
school courses to ensure that they adequately prepare incoming students for the
rigors of academic study at UC.
The plaintiffs’ reliance on forum cases which apply heightened scrutiny is
misplaced. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819
(1995); Widmar v. Vincent, 454 U.S. 263 (1981); Bd. of Regents of Univ. of
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Wisconsin System v. Southworth, 529 U.S. 217 (2000). The plaintiffs concede that
this case does not involve a forum. Nor does this case present a “close analogy” to
forum cases as in Southworth. Here, UC evaluates high school courses to ensure
they are college preparatory, not to facilitate “the free and open exchange of ideas
by, and among, its students.” Southworth, 529 U.S. at 229-30. The forum cases are
simply inapposite. See ALA, 539 U.S. at 206-07 (distinguishing Rosenberger
because a “public library does not acquire Internet terminals in order to create a
public forum for Web publishers to express themselves.”); Finley, 524 U.S. at 586
(“The NEA's mandate is to make esthetic judgments, and the inherently
content-based ‘excellence’ threshold for NEA support sets it apart from the subsidy
at issue in Rosenberger . . . .”).
II. The Plaintiffs’ Facial Challenge
The plaintiffs have not alleged facts showing any risk that UC’s policy will
lead to the suppression of speech. Finley, 524 U.S. at 580 (To prevail on a facial
challenge, a plaintiff “must demonstrate a substantial risk that application of the
provision will lead to the suppression of speech”). Nor can they. It is undisputed
that UC’s policy does not prohibit or otherwise prevent high schools, including
Calvary, from teaching whatever and however they choose or students from taking
any course they wish. High schools can, and do, continue to teach courses even
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when they are denied UC approval. UC does not punish a school for teaching, or a
student for taking, an unapproved course. Cf. R.A.V. v. City of St. Paul, 505 U.S.
377, 391, 393 (1992) (invalidating an ordinance that set forth a clear penalty,
proscribed views on particular disfavored subjects and suppressed distinctive ideas
conveyed by a distinctive message).
The plaintiffs devote much of their appeal to arguing that UC’s policy on
religion and ethics courses constitutes viewpoint discrimination. This policy
provides that in order to receive UC approval, religion and ethics courses should
“treat the study of religion or ethics from the standpoint of scholarly inquiry, rather
than in a manner limited to one denomination or viewpoint.” Aside from pointing
out that UC’s policy includes the word “viewpoint,” the plaintiffs fail to allege
facts showing that this policy is discriminatory in any way. It is not. As UC’s
expert explained, UC’s policy is necessary because the “academic study of religion
is multidisciplinary in nature” and “[p]rivileging one tradition or point of view is
considered unacceptable and counter-productive in the scholarly study of religion
at UC and similar colleges and universities.”
Going beyond UC’s written policies, the plaintiffs contend that UC has a
well established practice of rejecting courses with standard content solely because
they add a religious viewpoint. See, e.g., Santa Monica Food Not Bombs v. City of
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Santa Monica, 450 F.3d 1022, 1035 (9th Cir. 2006) (in a facial challenge, the court
commonly considers the government’s “authoritative interpretation of its
guidelines” if it is a “well-established practice”). The evidence, however, is to the
contrary. It is undisputed that UC has approved courses with religious content and
viewpoints as well as courses that used religious textbooks as the primary and
secondary course texts.
III. The Plaintiffs’ As-Applied Challenge
As an initial matter, the district court correctly concluded that ACSI lacks
associational standing to assert as-applied claims on behalf of its member schools
that are not parties to this lawsuit.1 ACSI cannot satisfy the third prong of the
Supreme Court’s associational standing test, which mandates that “neither the
claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” Hunt v. Washington State Apple Advertising Comm’n,
432 U.S. 333, 343 (1977). The plaintiffs’ as-applied claims and the relief they
seek, although equitable in nature, both require “individualized proof” specific to
1
The plaintiffs do not contend that ASCI has associational standing to assert
claims on behalf of non-ASCI member schools which had courses rejected by UC,
including the Catholic and Jewish school courses the plaintiffs and amici
repeatedly discuss in their briefs.
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each rejected course and the school that offered it. Hunt, 432 U.S. at 343; Warth v.
Seldin, 422 U.S. 490, 515-16 (1975).2
Because ACSI lacks associational standing to bring as-applied claims on
behalf of non-party member schools, the plaintiffs’ as-applied challenge is limited
to the four Calvary courses that were denied UC approval. The district court
correctly determined that UC’s rejections of the Calvary courses were reasonable
and did not constitute viewpoint discrimination. The plaintiffs offer no facts or
evidence to disturb this conclusion. UC’s rejection letters and internal meeting
notes demonstrate that UC denied approval not because the courses added a
religious viewpoint, but because they were either not college preparatory, lacked
necessary course information or materials, or had other procedural defects which
Calvary never bothered to cure.
Alternatively, the plaintiffs contend that issues of fact exist with respect to
their as-applied challenge which preclude summary judgment. The plaintiffs,
however, have forfeited this argument. Instead of identifying the factual issues and
asserting arguments as to why they were material, the plaintiffs merely provide a
2
Because we conclude that ACSI lacks associational standing, we need not
address the district court’s additional decision that the plaintiffs waived as-applied
challenges for non-Calvary courses that were not timely disclosed. The plaintiffs
lack standing to assert as-applied claims based on non-Calvary courses regardless
of whether they were timely disclosed.
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table of citations to various declarations, affidavits, exhibits and depositions
relating to each rejected course, leaving this court to “piece together” their
argument. Independent Towers of Washington v. Washington, 350 F.3d 925, 929
(9th Cir. 2003) (holding that the plaintiff forfeited its preemption claims on appeal
where it provided a “five page laundry list of the challenged regulations and their
titles, leaving the court to piece together the argument for preemption as to each
regulation”). The district court properly rejected the plaintiffs’ as-applied
challenge.
IV. The Plaintiffs’ Additional Arguments
The plaintiffs assert a myriad of legal arguments attacking the district court’s
decision, all of which lack merit. We address each in turn.
A. Animus
The plaintiffs contend that the district court erred by requiring them to show
evidence of animus in order to succeed on their claims under the Free Speech and
Establishment Clauses. The district court, however, did not require animus under
the Establishment Clause. Nor did it require animus under the Free Speech Clause
as the plaintiffs contend; instead, it held that a showing of animus could render an
otherwise reasonable policy unconstitutional. See Finley, 524 U.S. at 587.
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B. The “Unbridled Discretion” Doctrine
Next, the plaintiffs argue that the district court erred by limiting the
unbridled discretion doctrine to licensing and prior restraint cases. We need not,
however, resolve the scope of this doctrine. See Ward v. Rock Against Racism, 491
U.S. 781, 793 (1989) (noting that the scope of the doctrine is “far from clear”). We
affirm the district court’s decision based on its alternative holding that, assuming
the doctrine applies, UC provides sufficient guidance for course review to defeat a
challenge of unbridled discretion.
C. The “Primary Effect” Prong of the Lemon Test
The plaintiffs mistakenly argue that the district court erred by inventing a
“primary effect” standard under the Establishment Clause. The district court did
not invent the “primary effect” language. The Supreme Court used that language
in Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). As we have explained, the
“second prong of Lemon bars governmental action that has the ‘principal or
primary effect’ of advancing or disapproving of religion.” Vasquez v. Los Angeles
County, 487 F.3d 1246, 1256 (9th Cir. 2007) (quoting Lemon, 403 U.S. at 612).
D. The “Hybrid-Rights” Doctrine
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The plaintiffs contend that the district court erred by not applying strict
scrutiny to their free exercise claim under the so-called hybrid-rights doctrine. Yet
the plaintiffs offer no reason to depart from our recent decision in Jacobs v. Clark
County Sch. Dist., 526 F.3d 419, 440 n.45 (9th Cir. 2008) where we “declin[ed] to
be the first” court to allow a “plaintiff to bootstrap a free exercise claim” using the
hybrid-rights doctrine. Id.
The plaintiffs’ contention that the district court misread Sherbert v. Verner,
374 U.S. 398 (1963) in its discussion of the Free Exercise Clause is irrelevant. The
plaintiffs do not and cannot challenge the crux of the district court’s rejection of
their free exercise claim—that UC’s policies were more akin to the civil regulation
that was upheld in Locke v. Davey, 540 U.S. 712 (2004) than the criminal
prohibition that was invalidated in Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520 (1993).
E. The Equal Protection Clause
The district court properly applied rational basis scrutiny to the plaintiffs’
equal protection claim. See Locke, 540 U.S. at 721 n.3 (“Because we hold . . . that
the program is not a violation of the Free Exercise Clause, however, we apply
rational-basis scrutiny to his equal protection claims.”) (citations omitted). The
plaintiffs nevertheless argue that strict scrutiny applies because religion is a suspect
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class. Courts, however, only apply strict scrutiny when distinctions are made on
the basis of a suspect class, like religion. City of Cleburne, Tex. v. Cleburne Living
Ctr., 473 U.S. 432, 440 (1985); Ball v. Massanari, 254 F.3d 817, 823 (9th Cir.
2001).
The record is devoid of any evidence showing that UC discriminates on the
basis of religion. UC’s course approval policy is the same for all in-state
applicants, regardless of religion. The plaintiffs do not contend that any student
has been denied UC admission based on the student’s religion. Nor do they
contend that any student has been denied eligibility based on UC’s rejection of a
high school course. UC’s policy and its individual course decisions are not based
on religion, but on whether a high school course is college preparatory. As the
defendants point out, whether a course is college preparatory is not a suspect
classification; therefore, the Equal Protection Clause requires only that UC’s
distinctions be rational.
F. The 150 Rejected Courses and the “Overbreadth” Doctrine
The plaintiffs argue that the district court erred by “entirely ignoring”
evidence that UC rejected over 150 courses from religious high schools (the
majority of which are not plaintiffs in this case) and by refusing to apply the
overbreadth doctrine. To the contrary, the district court expressly recognized the
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laundry list of 150 rejected courses proffered by the plaintiffs and concluded it was
irrelevant because the plaintiffs did “not provide an analysis as to why any of the
more than 150 courses rejected by UC should have been approved.”
That the district court did not specifically address the rejected courses in its
analysis of the overbreadth doctrine does not constitute error. The plaintiffs’ list of
150 rejected courses, without any supporting analysis, does not raise a genuine
issue of material fact with respect to whether UC’s policy “punishes a ‘substantial’
amount of protected free speech” in violation of the overbreadth doctrine. Virginia
v. Hicks, 539 U.S. 113, 118-19 (2003). The plaintiffs failed to provide any
evidence of punishment, or even a chilling effect, because high schools are free to
continue teaching the courses even if UC denies approval.
G. The Plaintiffs’ Additional Expert Affidavits
The plaintiffs contend, without support, that the district court erred in
excluding “certain opinions” in its additional expert affidavits. The plaintiffs do
not specify which opinions in the affidavits were improperly excluded, nor do they
explain why the exclusions were erroneous, and have therefore failed to preserve
this argument. See Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir.
1994) (“We review only issues which are argued specifically and distinctly in a
party’s opening brief . . . . We will not manufacture arguments for an appellant,
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and a bare assertion does not preserve a claim, particularly when, as here, a host of
other issues are presented for review.”).
AFFIRMED.
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