Attentive DoL readers may recall that when the Supreme Court affirmed the 9th Circuit ruling in Christian Legal Society (CLS) v. Martinez, it did not address the claim advanced by CLS that Hastings Law School had enforced its "all-comers" policy in a discriminatory manner, denying registered student organization (RSO) status to CLS but granting RSO status to other student groups that violated the all-comers policy. CLS had argued that the all-comers policy was a pretextual ground for denying RSO status to CLS, the real ground being discrimination based on religion. In declining to address this claim, the SCOTUS said that on remand "the Ninth Circuit may consider CLS’s pretext argument if, and to the extent, it is preserved."
Unsurprisingly, the parties now take different positions before the Ninth Circuit as to whether the pretext argument is preserved. CLS says it is, citing Justice Alito's dissent and bits of the record; Hastings says it isn't, citing bits of the majority opinion rejecting Justice Alito's characterization of the record, as well as other bits of the record; and then CLS again says the issue is preserved. With the exception of a concluding speculation (below), I'll let interested readers sort this out for themselves, or just await the Ninth Circuit ruling on what is, at this point, principally an issue of civil procedure rather than constitutional law.
Here I want to raise a related question: leveling down. Suppose that the Ninth Circuit concludes that the pretext claim is preserved and further concludes that in fact Hastings did not enforce its all-comers policy even-handedly. It does not necessarily follow that CLS wins very much. That's because Hastings could eliminate the (assumed) constitutional violation in one of two ways: 1) It could eliminate the all-comers policy entirely, in which case CLS would get what it wants; or 2) It could, prospectively, apply the all-comers policy even-handedly, in which case CLS does not get what it wants. As the Court explained in Orr v. Orr:
In every equal protection attack upon a statute challenged as underinclusive, the State may satisfy the Constitution's commands either by extending benefits to the previously disfavored class or by denying benefits to both parties (e.g., by repealing the statute as a whole).Nothing in the above logic is limited to statutes, as opposed to policies (such as the all-comers policy) or to pure equal protection violations rather than violations of the parallel First Amendment prohibition on discrimination based on viewpoint or religion.
Note also that the (amended) complaint filed by CLS seeks declaratory and injunctive relief, not damages. To be sure, it also includes a catch-all seeking whatever other relief the district court deems appropriate, but even if CLS obtains retrospective declaratory relief and some element of monetary compensation, going forward CLS could still be out of luck. Although a district court has broad discretion to fashion an effective remedial injunction, in a case like this one it is hard to imagine that would include an order to Hastings to exempt CLS from its all-comers policy, assuming Hastings really does undertake to apply the policy even-handedly henceforth. At most, the district court would be able to retain jurisdiction to monitor Hastings' compliance with the obligation to apply the all-comers policy even-handedly.
Thus I come to my concluding speculation. I wonder whether the CLS lawyers thought this all through long ago: Perhaps they realized that winning by showing that Hastings had discriminated in the past would be a Pyrrhic victory, precisely because it would permit Hastings to "level down," whereas their core argument--that the all-comers policy violated the right to freedom of association even if applied even-handedly--would have given CLS a much larger win. If this speculation is right, that may say something about the likelihood that CLS preserved the less potent pretext/discrimination claim it now advances.