Cases & Developments

Opinion and Judgment affirming the District Court’s dismissal of all claims and denial of leave to amend. Plaintiffs, LGBTQ+ students who applied to, currently attend, or previously attended religious institutions that receive federal funding, brought multiple constitutional claims against the U.S. Department of Education challenging the Department’s application of the religious exemption in Title IX. On appeal, the Ninth Circuit affirmed the district court’s dismissal of Plaintiffs’ APA claim for lack of Article III standing and the Fifth Amendment equal protection and First Amendment Establishment Clause claims for failure to state a claim. The Circuit reasoned that Plaintiffs lacked standing to challenge the Rule’s removal of the requirement that schools submit a letter to qualify for a religious exemption under Title IX since the Department never previously denied any institution’s assertion that it was religious in nature, and thus this change did not increase the likelihood that schools would permissibly discriminate against students but “only … deprived the Plaintiffs of advance notice that their schools could … discriminate against them.” The Ninth Circuit held that the exemption does not violate the Establishment Clause as it “substantially relates to the achievement of limiting government interference with the free exercise of religion,” and further did not run afoul of the Fifth Amendment’s guarantee of Equal Protection. In analyzing the former claim, the Circuit found that although the district court erred in applying the Lemon test, such error was not invited by Plaintiffs sufficient to invoke the invited error doctrine, and that the lower court should have considered the “historical practices and understandings” underlying the Establishment Clause.