[00:00:00] Speaker 03: Please proceed. [00:00:05] Speaker 01: May it please the court a letter, Brenner, for the appellee plaintiffs. [00:00:10] Speaker 01: Appellant plaintiffs, sorry. [00:00:13] Speaker 01: Today, at over 200 government-funded universities across the United States, LGBTQ students can be sexually harassed, expelled, denied admission, or otherwise discriminated against without recourse. [00:00:28] Speaker 03: Okay, Council, let me just say this to you. [00:00:33] Speaker 03: Giving full dignity to the underlying comments that you just made, as a court, we have to look at the pleadings that you put forward to the district court. [00:00:46] Speaker 03: And I guess I would start with the fact that [00:00:50] Speaker 03: The Kennedy case, which I'm personally well familiar with, was decided six months before the court actually ruled in your case, and the court there made clear that Lemon v. Kurtzman was gone, and the history and tradition test took over. [00:01:10] Speaker 03: I don't see in your argument [00:01:14] Speaker 03: anything trying to substantiate your claim on this part of the case on the history and tradition. [00:01:21] Speaker 03: Did I miss something, or you just decided not to do that, or what happened? [00:01:26] Speaker 01: So on the Establishment Clause claim that the plaintiffs brought, you're absolutely right. [00:01:30] Speaker 01: Kennedy was decided many months after the motions to dismiss that the defendants had filed had been fully briefed. [00:01:36] Speaker 03: I'm sorry, after, no, Kennedy was decided before the judge ruled, all right, six months before. [00:01:42] Speaker 01: True. [00:01:43] Speaker 01: The defendants had filed motions to dismiss. [00:01:48] Speaker 01: Those motions were fully briefed. [00:01:51] Speaker 01: It was about seven months later, after that had all been submitted to the court, that the Kennedy decision came down. [00:01:58] Speaker 01: And within a couple days, there was a notice of supplemental authority that was provided to the district court. [00:02:03] Speaker 01: The district court did not rule then until another six months after that, and at that point applied [00:02:08] Speaker 01: the lemon test and did not acknowledge Kennedy. [00:02:11] Speaker 06: Mr. Brenner, in that supplemental authority exchange, did you not say, yeah, well, an argument will be forthcoming? [00:02:20] Speaker 06: Why did you never make the argument? [00:02:22] Speaker 01: So the notice of supplemental authority was filed a couple of days after the decision came down. [00:02:27] Speaker 01: It was filed by some of the defendant interveners. [00:02:30] Speaker 01: At that point, there was some suggestion, perhaps, that the court would like additional briefing, but the court never requested it. [00:02:36] Speaker 01: and because the defendants did not re-brief their motions. [00:02:39] Speaker 01: The plaintiffs did not re-brief a response. [00:02:41] Speaker 02: So, counsel, I'm looking at SCR 11 with a document entitled Plaintiffs Supplemental Brief of Newly Discovered Facts, and it says, intervener defendants recently filed notice of supplemental authorities regarding Kennedy. [00:02:56] Speaker 02: Footnote seven. [00:02:58] Speaker 02: Plaintiffs will more fully respond to intervener defendants' arguments in a separate filing. [00:03:04] Speaker 02: Am I correct that that's what the pleading I just read says? [00:03:08] Speaker 02: That's correct. [00:03:09] Speaker 02: And am I correct that there never was any such supplemental pleading that responded to intervener defendants' arguments? [00:03:17] Speaker 01: No, the court did not request any further briefings. [00:03:19] Speaker 02: But you said you're going to do it, and you didn't do it, right? [00:03:23] Speaker 01: The parties decided not to plead, not to file any supplemental briefing without leave of the court. [00:03:30] Speaker 03: Even though the other side had flagged the issue? [00:03:34] Speaker 01: The other side had flagged the issue, and the court [00:03:38] Speaker 01: had discretion as to whether or not to request supplemental briefings from the parties. [00:03:43] Speaker 01: The plaintiff suggested that they were willing to provide such briefing, but it was never requested. [00:03:50] Speaker 03: That's a most interesting position. [00:03:52] Speaker 03: So you felt that even though the other side had flagged it, the law had changed. [00:03:59] Speaker 03: Even though the district judge was wrong in continuing with Lemmon, you decided not to brief the history and judicial concept, even though that was the law at that point. [00:04:08] Speaker 03: Is that right? [00:04:09] Speaker 01: At that point in time, there had been multiple supplemental notices of authority and additional facts that had been provided to the district court, and the district court had provided some feedback that the district court was growing tired with all of the additional supplemental filings. [00:04:27] Speaker 01: At that point in time, the plaintiffs felt that they wanted to allow the court [00:04:32] Speaker 01: to let the parties know if, in fact, the court wanted further briefing on the issue. [00:04:37] Speaker 06: I guess, where would, if the panel were to reach the Establishment Clause claim, where should we look for the plaintiff's best argument as to why the Title IX exemption violates the Establishment Clause? [00:04:54] Speaker 01: There's a couple different areas where [00:04:56] Speaker 01: At least at the pleading stage, the plaintiffs have suggested issues with the exemption as it's been applied to them where it could violate the establishment clause. [00:05:05] Speaker 01: One of these issues is the way that it privileges religion over secular, religious institutions over secular institutions in a way that allows them to obtain a federal benefit in the form of funding without the strings attached that apply to secularism. [00:05:20] Speaker 06: Is Amos, which relied on the lemon test, still good law after Kennedy? [00:05:25] Speaker 01: So Amos, I think it's questionable whether it's still good law in light of the Kennedy decision because it did rely on that. [00:05:32] Speaker 01: But furthermore, I don't think that the Amos case is very helpful here because Amos concerned that religious exemption in Title VII, which is structured very differently from the religious exemption in Title IX, both in terms of its scope and the way it operates and also in the way that it's neutral as to religious doctrine. [00:05:48] Speaker 01: And furthermore, AMOS, being a Title VII exemption, is not in the context of any kind of federal funding. [00:05:55] Speaker 01: And the important thing to note here is that a lot of these cases that have applied historical practices and understandings type analysis in the context of a religious exemption are cases that are looking at types of exemptions that apply to general law. [00:06:09] Speaker 01: So for example, the military selective service context. [00:06:12] Speaker 01: and not to a situation where you're talking about the spending clause, where there's federal money that's going. [00:06:17] Speaker 06: Can I back up? [00:06:18] Speaker 06: You'd mentioned that it's neutral with respect to religious doctrine, the Title VII exemption. [00:06:27] Speaker 06: That involved a preference for co-religionists, which is that not a question of doctrine that some religions may have preferences for co-religionists in those positions? [00:06:38] Speaker 06: Some may not. [00:06:39] Speaker 01: It's certainly it's certainly there's a preference there and that it's allowing exemption in that situation, but it's not inquiring into the doctrine of these. [00:06:48] Speaker 02: I'm sorry, please finish. [00:06:49] Speaker 01: It's not inquiring into the doctrine of any individual religious group as to whether or not the exemption applies, whereas the Title IX exemption by its own terms hinges on the question of whether or not the application [00:07:02] Speaker 01: of Title IX would be inconsistent with the tenets of the religious organization that controls the school. [00:07:08] Speaker 02: So Council, you say at page 47 of the blue brief, the exemption is inconsistent with the historical understanding of the Establishment Clause because it discriminates between religious sects and is available only to some religious groups. [00:07:24] Speaker 02: those whose tenants are inconsistent with an application of Title IX. [00:07:30] Speaker 02: Let me give you a hypothetical. [00:07:33] Speaker 02: The government, state, federal government, has a rule that in a particular agency, everybody has to be available to work every day. [00:07:41] Speaker 02: But then they have an exception that says, but if for a particular individual, their religious beliefs would not allow them to work on a particular day of the week, government shall take that into account. [00:07:57] Speaker 02: That seems to me to be forbidden in your view by the statement on the top of page 47 of your brief that quoted that, you know, you can't make it only available to those whose religious tenets have a problem with it. [00:08:14] Speaker 01: So I think that there's two issues there. [00:08:17] Speaker 01: One issue is whether or not the [00:08:21] Speaker 01: allowing the exemption is turning on the specific doctrine of the individual, and then the second question is whether in applying the exemption it requires the government to go into some sort of inquiry into what that doctrine is. [00:08:33] Speaker 01: In these types of cases where there's been, for example, unemployment benefits have been at issue, [00:08:38] Speaker 01: The context of that is very different because it's a general kind of benefit that is open to everyone. [00:08:44] Speaker 01: And then there's been exemptions that have been offered for specific. [00:08:48] Speaker 02: So are you backing off the breath of the statement that I read that it violates the historical understanding because it is available only to some religious groups because of their tenants? [00:09:03] Speaker 01: I think that I'm not backing off that statement at a very high level, but I think what Kennedy tells us is that in order to really engage in the historical practices and understandings analysis, you really do need to kind of get down into the weeds of the particular type of exemption at issue, the context of that both historically and the context of how it's being applied in the present day because that context and the facts matter and how that exemption is actually going to hit the ground and whether it in fact in practice raises an establishment [00:09:33] Speaker 01: clause issue. [00:09:34] Speaker 01: And the problem here is that because the district court did not engage in any Kennedy analysis at all, we don't really have anything there to look at. [00:09:42] Speaker 01: And because it wasn't developed by the parties below, we don't really have the record where we can dig into that. [00:09:48] Speaker 01: The plaintiffs would be happy to do that if this case was remanded to the district court so that they could do that historical research and also look at their claim and potentially replete it. [00:10:00] Speaker 02: You could have done it in your briefs if you'd wanted to, correct? [00:10:04] Speaker 01: I think that at this point, yes, there could have been some discussion of the law in the briefs, but I think it goes deeper than that because remember, in fact, unlike Kennedy, which was decided on a motion for summary judgment, this was happening at the pleading stage when there was very little of the facts in this case actually developed. [00:10:22] Speaker 01: There had been a limited amount of discovery for purposes of a preliminary injunction that the plaintiffs had filed, but there had not been discovery and really a full development of the facts, which is what I think you would need [00:10:33] Speaker 01: if you were going to really engage with this type of test. [00:10:36] Speaker 03: Let me ask you this, counsel. [00:10:39] Speaker 03: We've talked a little bit about the timing of Kennedy and when the ruling came down. [00:10:42] Speaker 03: If the court was of the opinion that you were fully informed that the law required the history and tradition analysis and you didn't do it, would that be the basis for a waiver of your establishment clause claims? [00:11:00] Speaker 01: So on the issue of waiver, I think it would be a waiver if the plaintiffs had been the one who introduced the error here. [00:11:08] Speaker 03: But in this case- I'm not talking about invited error. [00:11:10] Speaker 03: I'm talking about waiver where you had to present something to preserve it, and you didn't do that. [00:11:19] Speaker 03: So let's follow that. [00:11:20] Speaker 03: I'm not talking about invited error. [00:11:21] Speaker 03: I don't think that's here in this case. [00:11:24] Speaker 03: But tell me about the waiver aspect. [00:11:25] Speaker 03: Why isn't this a waiver of the Establishment Clause aspect? [00:11:30] Speaker 01: So the defendants are the ones that had brought their motion and they argued under whatever law they were going to argue, right? [00:11:37] Speaker 01: The court was actually aware of what the correct law was after Kennedy had been decided and the court had an obligation to apply the correct law. [00:11:45] Speaker 01: So it's hard for me to see how the plaintiffs can be faulted and say that they waived arguments, anticipating arguments that weren't actually made by the other side either. [00:11:55] Speaker 03: So is it your position that [00:11:57] Speaker 03: There's no waiver, but we can go ahead and decide the case based upon the law as it is post-Kennedy. [00:12:03] Speaker 03: Is that correct? [00:12:04] Speaker 01: I don't think that we can decide the case based on the law post-Kennedy right here at the appellate level, because I don't think we have enough of a record to see how this actual historical practices and understandings, A, what they were in the context of a spending clause exemption like the one, because none of the cases that we have that we can look to have that sort of situation. [00:12:25] Speaker 01: And second of all, we don't have sufficient facts to really understand how this exemption is applying to these students on the ground because A, given this state of the pleadings that it was on. [00:12:36] Speaker 03: And whose fault is that? [00:12:38] Speaker 01: I'm sorry? [00:12:38] Speaker 03: Whose fault is that? [00:12:39] Speaker 03: You're the plaintiffs. [00:12:41] Speaker 03: You have the burden. [00:12:42] Speaker 03: You knew what the law was. [00:12:44] Speaker 03: You didn't present that evidence. [00:12:46] Speaker 03: Is that the fault of the government? [00:12:48] Speaker 03: Is that the fault of the plaintiffs? [00:12:49] Speaker 03: Whose fault is it? [00:12:51] Speaker 01: Well, I mean, again, this was decided on a motion to dismiss. [00:12:54] Speaker 01: And plaintiffs had asked for an opportunity to replede, to potentially add new facts and develop the case in order to address both that and any of the other deficiencies. [00:13:04] Speaker 01: What was that? [00:13:04] Speaker 03: After the district court's ruling you did, right? [00:13:06] Speaker 01: Well, there was actually a motion to amend that had been previously made that was not actually directed at changing anything substantively, but then is also part of responding to the motions to dismiss. [00:13:18] Speaker 01: The plaintiffs would have liked to have leave to amend, which the court acknowledged and then denied leave to amend. [00:13:23] Speaker 01: not because there was prejudice. [00:13:24] Speaker 01: In fact, she found there was no prejudice and not because they had many bites at the apple. [00:13:29] Speaker 01: They'd only, you know, amended once as a matter of course, before responsive pleading. [00:13:33] Speaker 01: She denied leave to amend purely on futility of grounds. [00:13:37] Speaker 01: And, you know, that also gets into the equal protection and APA claim. [00:13:41] Speaker 03: Let me ask you this, you've alleged animus and discriminatory intent against LGBTQ plus people, but when Title IX was adopted, is there any argument you can make that that was understood that someday the Title IX would cover LGBTQ people? [00:14:06] Speaker 03: Did anybody say that in Congress? [00:14:08] Speaker 01: I think that we can look at the history at the time and we can also look at, you know, the reasoning and discussion even in the bow stock opinion and we know that in, you know, a plain reading of the text in Title IX just like in Title VII does suggest that, you know, that sexual orientation and gender identity are things that would be encompassed within that. [00:14:29] Speaker 03: But the important thing to remember here is that the plaintiffs... But respectfully, my understanding of your allegation is that they knew and they intentionally discriminated. [00:14:38] Speaker 03: I get your point of, you know, a la Justice Gorsuch and textualism. [00:14:42] Speaker 03: I get that point. [00:14:44] Speaker 03: What I don't understand is how you can say that when Title IX was passed that there was any thought in the Congress that someday this was going to cover LGBTQ people. [00:14:56] Speaker 03: What's to the contrary? [00:14:59] Speaker 01: I think that there's historical facts in that context to look to, but I also think it's kind of neither here nor there because the plaintiffs have alleged an as applied challenge as the department has applied Title IX exemption to them over the years, and there's a lot more different facts that flow all the way up to the present day. [00:15:16] Speaker 03: But your animus argument is against the department's application of law rather than the nature of the law as adopted. [00:15:22] Speaker 03: Is that your claim? [00:15:23] Speaker 02: Right, the gravamen of their claim is really focusing on the department's conduct over the years, and that flows all the way through even to their... So you're not arguing that there was any animus toward your clients, toward the group that your clients are in, that motivated the passage of the exemption? [00:15:49] Speaker 01: I wouldn't say that, I think- Well, I thought you just did say that. [00:15:52] Speaker 02: I thought you did say that. [00:15:54] Speaker 01: I think, yes, sorry. [00:15:56] Speaker 02: I mean, I think you're abandoning that gives you a little bit of a legal problem, but if you're not abandoning it, then I'd ask you respectfully to answer Judge Smith's question, what is even the slightest indication that that animus may have motivated the Congress or the executive in passing or signing the bill? [00:16:19] Speaker 01: So what I would say is that in 1972, at the time that this was going on, there was widespread discriminatory views against LGBTQ people. [00:16:30] Speaker 01: I think we can all recognize that. [00:16:32] Speaker 01: That was the environment. [00:16:35] Speaker 01: And what plaintiffs have alleged is that at that time, Congress was simply not concerned about protecting them. [00:16:41] Speaker 01: And so they were fine putting this big exemption in the law that they knew would negatively and specifically impact LGBTQ. [00:16:49] Speaker 03: Take your point, there was discrimination, no question. [00:16:53] Speaker 03: Where's the evidence that shows that the members of Congress intentionally discriminated against LGBTQ people when it passed Title IX? [00:17:02] Speaker 01: So what I would say is that plaintiff's claims doesn't hinge on that for two reasons. [00:17:07] Speaker 01: The first is that [00:17:09] Speaker 01: You don't have to have legislators personally hold animus for something to be an intentional discrimination claim. [00:17:15] Speaker 01: Can you impute it? [00:17:17] Speaker 01: Well, if they are responding to interest groups that are expressing animus that they are trying to placate, for example. [00:17:23] Speaker 06: And where's that in the pleadings? [00:17:25] Speaker 01: And so these are facts that are not well developed in the pleadings, I will tell you that, and that is why the plaintiffs wanted an opportunity to amend. [00:17:33] Speaker 06: But these wouldn't be new, I mean, this was a law passed in 1972. [00:17:37] Speaker 06: Why couldn't those have been established in your complaint? [00:17:40] Speaker 01: So the plaintiffs allege that there was an environment of intense discrimination against LGBTQ people at the time, and that Congress was looking to [00:17:51] Speaker 01: placate religious universities that were unhappy, for example, about Title VI, which had no religious exemption in it, and looked at Title IX and were concerned about the impact for them and did not want to be affected by it. [00:18:02] Speaker 06: I guess to turn more broadly to the equal protection issue, what's the classification that you urge here? [00:18:09] Speaker 06: I'm trying to figure out the relationship of the sex-based or gender-based classification and the religion-based classification. [00:18:16] Speaker 06: Why is it not just a religion-based classification? [00:18:19] Speaker 01: And I'll just note that I've got two minutes left. [00:18:21] Speaker 03: Why don't you answer his question first? [00:18:23] Speaker 01: Yeah, I'm happy to answer your question. [00:18:24] Speaker 01: So the plaintiffs take the position that this is sex-based discrimination, that intermediate scrutiny should apply. [00:18:31] Speaker 01: However, because there is an intentional discrimination issue here, and again, this goes not just to Congress, but their primary focus is on the department and its conduct over the years, that because of that, there is a heightened scrutiny that applies here either way. [00:18:44] Speaker 01: And so because of that, they have and can state a claim [00:18:48] Speaker 01: based on the department's policies, even through rulemaking and through the issues like with their APDA claim and the lack of notice. [00:18:55] Speaker 01: Those types of things, you can draw an inference of discrimination and intent on the part of the department, and that is really the gravamen of their claim here from an equal protection standpoint. [00:19:04] Speaker 03: Okay. [00:19:04] Speaker 03: I want you to save the balance of your time. [00:19:06] Speaker 03: Thank you. [00:19:07] Speaker 03: Now, on the appellee side, we've got three different lawyers. [00:19:11] Speaker 03: As I understand it, Ms. [00:19:15] Speaker 03: I'm out told, is that correct? [00:19:18] Speaker 03: Okay, you have 10 minutes, then Mr. Chandabel has five minutes, and Mr. Scheer has five minutes, is that right? [00:19:28] Speaker 03: Okay, and I'll hold you to those times, so keep that in mind, please proceed then. [00:19:41] Speaker 00: Good morning, and may it please the court [00:19:43] Speaker 00: Ashley Honnold for the United States. [00:19:47] Speaker 00: As the court noted, plaintiffs have not met their burden to show animus. [00:19:51] Speaker 00: The government does not dispute that LGBTQ individuals have faced and continue to face discrimination, and the government does not condone discriminatory acts. [00:20:00] Speaker 00: But under binding Supreme Court precedent, that historic discrimination does not trigger intermediate scrutiny. [00:20:06] Speaker 06: Ms. [00:20:06] Speaker 06: Honnold, can I ask you a question about the operation of this exemption? [00:20:11] Speaker 06: It appears to operate kind of at the wholesale level, so that if a school claims the exemption because any aspect of the imposition of Title IX would violate any of its religious tenets, it gets a blanket exemption. [00:20:27] Speaker 06: Is that right? [00:20:28] Speaker 00: No, Your Honor. [00:20:29] Speaker 00: The exemption does not operate as a blanket exemption. [00:20:32] Speaker 00: Instead, it only [00:20:35] Speaker 00: applies to the extent that a particular application of Title IX would conflict with a specific tenant of the controlling religious organization. [00:20:43] Speaker 00: And I'd like to give an example that I think will help illustrate this. [00:20:47] Speaker 00: So, for example, a school might obtain a religious exemption for, say, a student, a policy that prohibits same-sex relationships between students. [00:20:57] Speaker 00: even if the school were to obtain a religious exemption as to that student policy, it does not mean that the school is free to, let's say, permit physical harassment of LGBTQ students or assaults, physical assaults, or to fail to address complaints of harassment. [00:21:16] Speaker 00: So those things would still be prohibited under Title IX. [00:21:19] Speaker 06: Where should we look for that? [00:21:21] Speaker 06: Because that doesn't seem to be obvious from the text of the exemption. [00:21:24] Speaker 06: What's the authority for that application? [00:21:27] Speaker 00: think it is [00:21:30] Speaker 00: It is apparent from the text of the statute itself. [00:21:35] Speaker 00: So if we look at the text of Title IX, it says that you have to look at whether an application of the subsection, so that's where it's a particular application of Title IX, would not, and then the text says, would not be consistent with the religious tenets of such organizations. [00:21:52] Speaker 06: But then it says, this section shall not apply. [00:21:54] Speaker 06: That's the condition to get the exemption, but then the consequence of the exemption is that the section shall not apply. [00:22:06] Speaker 06: Am I misreading? [00:22:08] Speaker 06: I get it right. [00:22:09] Speaker 06: The problem, as you've indicated, is that a school may seek a religious exemption to maintain same-gender bathrooms or same-gender residential arrangements. [00:22:20] Speaker 06: If you can point out to me where, beyond the text of the statute, it's made clear that, in that instance, the exemption from Title IX doesn't also then immunize [00:22:30] Speaker 06: gender-based violence or other things that are also subject to Title IX that would not conflict with the religious tenets of the school. [00:22:38] Speaker 00: So I think if we look at the history of the department's application of the Title IX religious exemption and how it's addressed complaints, I think that gives some clarity as to the tailoring of the religious exemption and how it's not just a blanket exemption. [00:22:54] Speaker 00: And just to look at this case in particular, the department does take seriously the allegations and plaintiffs' complaints, and some of those investigations do remain open. [00:23:03] Speaker 00: The department has not [00:23:05] Speaker 00: granted blanket religious exemptions and simply dismissed all of those complaints. [00:23:10] Speaker 03: But just turning... Let me just ask you a follow-up on that aspect of it. [00:23:14] Speaker 03: My understanding is that the department doesn't even require a pre-clearance, basically. [00:23:21] Speaker 03: People can raise the religious exemption at almost any time. [00:23:25] Speaker 03: My understanding is also that there's no examination by the department of the religious tenant, if you will, on which an organization relies. [00:23:35] Speaker 03: Is that correct? [00:23:37] Speaker 03: Order to qualify for the exemption. [00:23:40] Speaker 00: Sure, to the extent that your honor is asking whether the department takes the religious school's word as to what the religious tenets are and whether there is a conflict with a particular application of Title IX, that's correct. [00:23:54] Speaker 00: But that does not suggest that the department does not actually scrutinize or apply the exemption with any tailoring. [00:24:01] Speaker 00: The department actually does some work. [00:24:03] Speaker 00: It looks at whether the [00:24:05] Speaker 00: religious exemption would apply to whatever the complaint of discrimination is. [00:24:10] Speaker 06: Does it look to see whether the institution or organization is controlled by a religious organization? [00:24:16] Speaker 00: Yes, Your Honor, that is a requirement of Title IX, and that's not challenged in this appeal. [00:24:22] Speaker 06: But I guess I believe the plaintiffs have highlighted some areas where some of the schools where the students have been enrolled that have received exemptions do not appear to be controlled by a religious organization, or at least there's not any. [00:24:42] Speaker 06: Is there guidance that would tell us one way or the other whether they were controlled by a religious organization? [00:24:47] Speaker 00: Your Honor, I don't believe that has been raised on appeal, so I'm not sure of the answer to that. [00:24:55] Speaker 02: So I want to go back to your initial discussion of animus. [00:25:02] Speaker 02: So in the government's brief at 14, it says basically for 40 years, no one suggested that Title IX applied to sexual or gender minorities, so there couldn't have been the type of animus that would be required for plaintiff to make out the claim they're advancing. [00:25:24] Speaker 02: Am I interpreting your brief correctly? [00:25:27] Speaker 02: Yes, your honor, okay, and That is I take it still the government's position that if there is no evidence that at the time of passage and from up from whatever 72 to 2010 that anybody even considered this as applying to sexual or gender minorities and there cannot be the type of animus required for plaintiff to make out the claim they're advancing and [00:25:55] Speaker 00: I think that's right, Your Honor, and the Supreme Court explained under Bostock that it does not matter for purposes of what's prohibited under Title IX. [00:26:04] Speaker 00: We have to look at the plain text of the statute, and the Supreme Court explained in Bostock that prohibiting discrimination based on sex does also include discrimination based on gender identity and sexual orientation. [00:26:16] Speaker 00: But in terms of whether or not Congress in 1972 was trying to discriminate against LGBTQ individuals, that's simply not the case because they didn't have this particular population in mind. [00:26:28] Speaker 00: But more importantly, regardless of the level of scrutiny that is applied here, I think this court could just assume that intermediate scrutiny applies like the district court did because it's clear that the government would still prevail under intermediate scrutiny. [00:26:44] Speaker 00: The religious exemption is substantially related to the government's important interest in accommodating religion and avoiding government entanglement and religion. [00:26:53] Speaker 03: Let me ask you this. [00:26:54] Speaker 03: The council has changed the subject a little bit. [00:26:57] Speaker 03: You have argued that the failure of the district court to apply, basically to continue to rely on the lemon test, was the fault of the plaintiffs. [00:27:08] Speaker 03: But my reading of the record suggests that the plaintiffs weren't the ones who introduced that. [00:27:12] Speaker 03: That was the government. [00:27:14] Speaker 03: So if we reject the concept of invited error, as you have requested that we do, what's your position about the waiver argument that the other appellees have raised? [00:27:26] Speaker 00: Your honor, the government is not arguing that plaintiffs have waived or forfeited their establishment clause claim. [00:27:34] Speaker 03: You're saying you're not arguing waiver. [00:27:38] Speaker 00: We are not arguing waiver forfeiture. [00:27:40] Speaker 00: Rather, we are pointing out that it would be somewhat anomalous for this court to conclude that the district court committed [00:27:48] Speaker 03: Reversible error when the court addressed the arguments that were presented by the plaintiffs So you you want you want us to decide the merits of the case not based on any waiver or Invited error, is that correct? [00:28:03] Speaker 00: Not quite your honor The government is not arguing that plaintiffs waived or forfeited their establishment clause claim but the government does think it would be proper for this court to say that because plaintiffs did not raise these arguments before the district court and [00:28:18] Speaker 00: that they cannot present these arguments on the first time on appeal. [00:28:21] Speaker 00: It's strange for plaintiffs to be able to say, we'll try the lemon test in district court, we'll wait to see if we win, and then after we lose on the lemon test, we'll advance the historic analysis test later. [00:28:31] Speaker 03: So what do we do? [00:28:32] Speaker 03: Kennedy made clear, I think Justice Gorsuch said that lemon was long gone, but certainly by Kennedy it was gone. [00:28:43] Speaker 03: That had happened before the court actually ruled in the case. [00:28:48] Speaker 03: You say that, yeah, it seemed to agree there's no invited error. [00:28:51] Speaker 03: You say there's no waiver. [00:28:53] Speaker 03: Then how do we decide it? [00:28:54] Speaker 03: Do we just decide it's a totally illegal issue? [00:28:58] Speaker 03: Do we have to send it back to the trial court for new pleadings, new development of the record? [00:29:04] Speaker 03: What do we do from the government's perspective? [00:29:06] Speaker 00: I think the court could either affirm because on the invited error doctrine, or the court could apply Kennedy as a legal analysis and decide the case. [00:29:16] Speaker 00: The court. [00:29:16] Speaker 03: So the district court relied on Lemon, which is wrong. [00:29:20] Speaker 03: Can we just say the district court got it wrong, but when you apply Kennedy, the plaintiffs lose on the establishment clause claim? [00:29:29] Speaker 03: Is that your position? [00:29:30] Speaker 00: Yes, Your Honor, this court has case law saying that the court may affirm based on any basis in the record. [00:29:35] Speaker 00: And I think it's clear here that there is a long history of this court and the Supreme Court upholding religious exemptions similar to the one at issue here. [00:29:44] Speaker 02: I think one of the arguments the government made in its brief is that plaintiffs haven't offered any reason to suggest that the Amos case, for example, would have come out any differently under Kennedy than it did under Lemon. [00:29:58] Speaker 00: Yes, exactly, Your Honor. [00:30:00] Speaker 00: The court explained in Amos that it has long held, looking back, that the government may and sometimes must accommodate religion, and that it may do so without violating the Establishment Clause. [00:30:14] Speaker 00: So there's no reason to think that Amos would have come out differently after Kennedy. [00:30:19] Speaker 03: Your time is up. [00:30:20] Speaker 03: Let me ask through either of my colleagues who have additional questions for the government. [00:30:23] Speaker 03: OK. [00:30:23] Speaker 03: Thank you very much. [00:30:24] Speaker 03: Thank you, Your Honor. [00:30:25] Speaker 03: So now we're going to hear from Mr. [00:30:27] Speaker 03: Is it Shandovel? [00:30:28] Speaker 03: I want to pronounce it correctly. [00:30:29] Speaker 03: Is that correct? [00:30:30] Speaker 03: Shandovel. [00:30:30] Speaker 03: OK, Shandovel. [00:30:31] Speaker 03: OK, very well. [00:30:32] Speaker 03: Please. [00:30:32] Speaker 03: Yes, Your Honor. [00:30:33] Speaker 05: Thank you, Your Honors. [00:30:35] Speaker 05: Good morning, and may it please the Court. [00:30:36] Speaker 05: Chris Shandovel with the Alliance Defending Freedom on behalf of religious schools Corbin University, William Jessup University, and Phoenix Seminary. [00:30:45] Speaker 05: In this lawsuit, the plaintiff's students are seeking to force private religious colleges and universities across the country to choose between either violating their sincerely held religious beliefs or else risk having to close their doors completely and permanently. [00:30:59] Speaker 06: Sure. [00:30:59] Speaker 06: Shandoval, I wonder if we could start where we just left off with the government. [00:31:03] Speaker 06: Yes, Your Honor. [00:31:04] Speaker 06: Phil, so the overruling of lemon is one of the more famous or infamous death by a thousand cuts of anything the court and so and I guess our problem is is that we have these somewhat formalistic tools to deal with forfeiture waiver whether our gifts have been made or not and we also don't have a [00:31:24] Speaker 06: complete set of arguments on the application of Kennedy to these cases. [00:31:30] Speaker 06: So what do you think we should do about the lack of district court ruling on this significantly changed test when even Kennedy wasn't [00:31:44] Speaker 06: absolutely clear. [00:31:45] Speaker 06: I mean, we had to go on to Groff finally to have the final blow delivered to Lemmon. [00:31:51] Speaker 06: What was the district court supposed to do and what are we supposed to do with this? [00:31:55] Speaker 05: So I think in this case for a few reasons, the court should apply the waiver doctrine and conclude that the argument as to Kennedy and the application of the historical practices test is waived because it was not made below despite there being the opportunity to make the argument below. [00:32:10] Speaker 06: I guess it was a significant change in the methodology, and I think we've seen this also in some other instances, too, of the test were to apply. [00:32:19] Speaker 06: You don't usually say that you waive arguments in terms of our particular types of cases one way. [00:32:30] Speaker 06: So is this a good fit? [00:32:33] Speaker 06: Is waiver a good fit for this? [00:32:34] Speaker 05: Sure, so this court does regularly say that plaintiffs waive arguments in courts below when they've been given the opportunity to make an argument and chose not to make the argument for whatever reason. [00:32:45] Speaker 05: This would be a very different case of the district court opinion [00:32:48] Speaker 05: had come down before the Kennedy case was decided or just a few days before it was decided. [00:32:53] Speaker 05: We filed our supplemental authority letter notifying the court of that decision full seven months before the district court's opinion. [00:33:00] Speaker 05: About a month later, the plaintiffs filed a brief in which they dropped a footnote saying that they would address Kennedy. [00:33:06] Speaker 05: in a future filing, and then they waited six months, never attempted to address Kennedy. [00:33:10] Speaker 05: And one point I wanted to make that hasn't been made yet is the district court explicitly relied on the plaintiff's position on page 32 of the excerpts of record, where the court writes this. [00:33:22] Speaker 05: Here, plaintiffs do not identify legal authority that would distinguish this case from the facts and law at issue in Amos, nor do plaintiffs dispute that the three-pronged test [00:33:31] Speaker 05: announced in Lemon applies. [00:33:33] Speaker 05: Again, despite being given multiple opportunities to dispute the argument that Lemon applies and actually endorsing that argument. [00:33:40] Speaker 05: So under these circumstances, we do think waiver of the argument under the historical practices test is appropriate. [00:33:47] Speaker 05: And that leaves only the Lemon test argument, which was made below, which they've not raised in their opening brief. [00:33:52] Speaker 05: Thus, that argument is also waived. [00:33:54] Speaker 05: And as a result, the entire establishment clause claim is waived on appeal. [00:33:58] Speaker 03: Let me ask you this, obviously waiver is one approach and you've articulated that, but is there enough evidence in the record that we have to permit us to decide the Establishment Clause case on the merits? [00:34:16] Speaker 05: We think that there is, and it's not really because of the evidence that's in the record. [00:34:20] Speaker 05: It's more based on a long-standing practice of cases dating back to the founding decided by the U.S. [00:34:25] Speaker 03: Supreme Court. [00:34:26] Speaker 03: It's law, basically. [00:34:27] Speaker 03: Yes, Your Honor. [00:34:28] Speaker 05: And I think the clearest enunciation of that law is what the U.S. [00:34:31] Speaker 05: Supreme Court said recently in the Carson v. Macon case when the court said, quote, It is clear that there is no historic and substantial tradition against aiding private religious schools. [00:34:41] Speaker 05: So the U.S. [00:34:42] Speaker 05: Supreme Court has made very clear what the history shows. [00:34:44] Speaker 05: So if this court decided to reach the merits, that's a very easy analysis, and there's no reason to remand for any further development of the record. [00:34:52] Speaker 05: If I could turn very quickly, Your Honors, to the Equal Protection Clause, there's been this assertion made that they sufficiently preserve the argument that Congress is motivated [00:35:01] Speaker 05: by invidious intent. [00:35:03] Speaker 05: Of course, there's this one bald assertion that Congress was motivated by intent to discriminate based on sexual orientation that was in the complaint. [00:35:11] Speaker 05: But what this court and the US Supreme Court both have said, this court and Moss, the US Supreme Court in the Iqbal case, is that such allegations of this bare intent to discriminate, quote, are not to be discounted because they're unrealistic or nonsensical, but rather because they do nothing more than state a legal conclusion, even if that conclusion is cast in the form of a factual [00:35:30] Speaker 05: allegations. [00:35:30] Speaker 05: So that bare allegation of discriminatory intent is not enough to survive a motion to dismiss. [00:35:35] Speaker 05: And so there's no need to remand for further factual development on that point. [00:35:40] Speaker 05: I've got six seconds remaining. [00:35:42] Speaker 05: I'm happy to answer any further questions the court might have for me. [00:35:45] Speaker 05: Otherwise, we'd ask the court to affirm. [00:35:47] Speaker 03: Thank you very much. [00:35:49] Speaker 03: Very well. [00:35:50] Speaker 03: Mr. Chair, is that correct? [00:35:52] Speaker 03: That's correct, Your Honor. [00:35:53] Speaker 04: Very well. [00:35:54] Speaker 04: Please proceed. [00:35:55] Speaker 04: Gene Chair, representing the Council for Christian Colleges and Universities, [00:35:59] Speaker 04: I think one easy way to resolve this case is simply to affirm Judge Aiken's finding that amendment would be futile, and I'd like to offer three reasons for that, but before I do that, I'd like to respond to Judge Johnstone's questions about how the exemption actually applies. [00:36:16] Speaker 04: Thank you. [00:36:17] Speaker 04: I was about to ask. [00:36:18] Speaker 04: I've represented a number of colleges in interactions with the Department of Education, and the reality is that [00:36:25] Speaker 04: the department does not apply that that exemption on a blanket basis and the key word in the in the exemption itself is it provides the exemption if the application of this subsection would not be consistent with the religious tenants of such organizations now that leaves the possibility that some applications will be inconsistent but other applications of the of the law would not be inconsistent and that's the way the department interprets that so it does not [00:36:53] Speaker 04: It does not grant blanket applications. [00:36:55] Speaker 06: Is there any guidance we could, do you have a site for that? [00:37:00] Speaker 06: Other than your own experience? [00:37:02] Speaker 04: I'm afraid I have to rely on my own experience, your honor. [00:37:05] Speaker 04: So let me offer three reasons why Judge Aiken was correct in determining that amendment would be futile. [00:37:12] Speaker 04: First of all, if we back up for a minute and think about the end of the chess game here, plaintiffs are essentially arguing establishment clause and equal protection. [00:37:23] Speaker 04: Obviously, any decision that invalidates the Title IX exemption is going to go to the Supreme Court. [00:37:30] Speaker 04: And does anybody really think that the Supreme Court that just rejected the Establishment Clause argument in the Kennedy case and has rejected Establishment Clause arguments in case after case after case over the last [00:37:44] Speaker 04: 30 or 40 years is now going to sustain an establishment clause challenge to this provision passed by the people's representatives over 50 years ago. [00:37:59] Speaker 04: And same with respect to the plaintiff's equal protection claim. [00:38:04] Speaker 04: I mean, does anybody really think that the Supreme Court in Bostock that went out of its way, both the majority and the dissent, the majority went out of its way [00:38:14] Speaker 04: to make clear that although Bostock was a sea change in how people understood Title VII, and they may reach the same decision with respect to Title IX, the court went out of its way to make clear that religious liberty still has to be protected in that new world. [00:38:32] Speaker 03: Let me ask you this. [00:38:34] Speaker 03: I get your point, but I think we would all agree that Judge Aiken was incorrect that Lemon was the law when she made the ruling. [00:38:43] Speaker 03: However, [00:38:44] Speaker 03: Uh, does that tie our hands in applying the correct standard under Kennedy? [00:38:52] Speaker 03: Uh, if, if based on the analysis that we have, we get kind of the same result. [00:38:59] Speaker 04: No, that certainly is another alternative to dealing with the establishment clause claim, Your Honor. [00:39:04] Speaker 04: You could resolve it on the merits, and our brief and the other intervener's brief lays out a lot of historical information that you could rely on. [00:39:14] Speaker 03: It's legal analysis as opposed to factual analysis. [00:39:17] Speaker 04: Yes, it's a legal question for sure. [00:39:20] Speaker 06: I don't know whether you could speak to the APA claim a little bit, but based on your [00:39:26] Speaker 06: experiencing the fact that now most of the plaintiffs have filed complaints. [00:39:32] Speaker 06: There are some troubling allegations of gender-motivated violence, other harassment. [00:39:43] Speaker 06: What are we supposed to do with that if we turn from, and what's the prospect of this if the facial as applied challenge to this classification is not upheld? [00:39:53] Speaker 06: Tell us a little bit about, from your perspective, where those complaints should go from here. [00:39:58] Speaker 04: Well, first of all, Your Honor, I'm not aware of any religious school that has claimed an exemption from Title IX with respect to gender-motivated violence or those kinds of things. [00:40:11] Speaker 04: I haven't seen that, and the plaintiffs didn't present any evidence that any school had ever sought such an exemption. [00:40:17] Speaker 04: So I think that's really a red herring. [00:40:20] Speaker 06: So Title IX is fully applicable to those sorts of complaints, as far as you know, with respect to your clients? [00:40:25] Speaker 04: Yes, and as far as the record shows, somebody would have to seek an exemption from that application of Title IX. [00:40:35] Speaker 06: What about harassment, short of violence? [00:40:38] Speaker 04: Same, same, Your Honor. [00:40:40] Speaker 04: I'm not aware of anybody who sought an exemption, under Title IX, any school that sought an exemption to protect their ability to have their students harass other students. [00:40:51] Speaker 04: The exemptions go to matters that are at the core of the faith commitments of those institutions, like adhering to the traditional religious understanding of marriage and [00:41:06] Speaker 04: gender matters and those sorts of things. [00:41:08] Speaker 04: They don't go beyond that in my experience. [00:41:11] Speaker 03: Your time is up. [00:41:12] Speaker 03: Let me ask my colleagues additional questions. [00:41:15] Speaker 03: We could talk about this for a long time, but I'm afraid we're going to have to say an end here. [00:41:22] Speaker 03: We've got a rebuttal by Ms. [00:41:23] Speaker 03: Renner. [00:41:29] Speaker 01: May it please the court. [00:41:30] Speaker 01: So the first item I'd like to address really briefly is the question of futility that was just raised. [00:41:36] Speaker 01: Certainly, the as applied claim comes through the department's regulations and the way that it has handled the exemption. [00:41:43] Speaker 01: So that goes far beyond talking about what Congress did in the 1970s. [00:41:46] Speaker 01: But specifically on the APA claim, the issue here is that the department put a regulation in place that allows the exemption to be claimed after the fact when a school has never before requested in writing [00:41:59] Speaker 01: That deprives students of notice and the ability to know what rights they have. [00:42:03] Speaker 03: Let me just ask you this on the ADA claims. [00:42:06] Speaker 03: As I look at the facts of the individual plaintiffs in this case, I didn't find any allegations that showed that any of these individual plaintiffs were harmed by the 2020 rule change. [00:42:22] Speaker 03: Did I miss something? [00:42:23] Speaker 01: There were not detailed facts pulled together in the operative complaint, but there are a number of facts that came through. [00:42:29] Speaker 03: There have to be to have standing causation, right? [00:42:32] Speaker 01: There would have to be some facts, general injury facts at least. [00:42:35] Speaker 01: And general injury was alleged, but there are many more facts that the plaintiffs could have added had they had the opportunity. [00:42:40] Speaker 01: So for example, one of the plaintiffs, Kaylee Hargrove, I'm sorry, I'm running out of time, but I'll respond to your question. [00:42:45] Speaker 03: Are you gonna finish answering my question? [00:42:46] Speaker 01: Yes, so Kaylee Hargrove was a military veteran who was going to school on the GI Bill. [00:42:51] Speaker 01: Kaylee saw that her school was a Title IX school, believed that meant that she had legal protections. [00:42:57] Speaker 01: It was a reasonable inference because that school had never before sought an exemption and there was nothing on OCR's website about it. [00:43:04] Speaker 01: Kaylee didn't find out until after she had undergone a gender transition and was well on her way to getting her degree when the school then told her basically, you're going to be expelled if you don't leave. [00:43:15] Speaker 01: And Kaylee, at the very last minute then, had to transfer schools, was delayed in her time to graduation, and was very much affected. [00:43:22] Speaker 01: And given the timing of when Kaylee was at school and when those things were happening, Kaylee would have benefited from the prior rule had the department had that rule and enforced it. [00:43:31] Speaker 03: And vis-a-vis the 2020 rule change, when did all this happen? [00:43:35] Speaker 03: Before, after, during what happened? [00:43:37] Speaker 01: So Kaylee applied to school in 2019 and started attending in 2020 and then was attending and underwent this gender transition at the time that this rule change was happening. [00:43:47] Speaker 01: Throughout that entire period there was no exemption sought. [00:43:49] Speaker 03: Is that alleged in the complaint? [00:43:51] Speaker 01: So those facts came out, for example, during the preliminary injunction hearing and was also alleged. [00:43:57] Speaker 01: That's exactly the kind of facts that the plaintiffs could and would want to allege if they were given the opportunity to do so. [00:44:05] Speaker 06: I guess just one in terms of framing. [00:44:08] Speaker 06: Do you agree that an exemption is not a blanket exemption? [00:44:13] Speaker 01: Well, I think that the way in which the statute is written, it certainly seems that way. [00:44:18] Speaker 01: And in practice, how it has happened is that some schools have [00:44:21] Speaker 01: said we would like an exemption from all of this long list of regulations under Title IX, and the Department of Education has said okay. [00:44:29] Speaker 01: Some of them have asked for exemptions that are quite general. [00:44:33] Speaker 01: Some of them have asked for exemptions that's more specific. [00:44:36] Speaker 01: And so in many cases, that is, as a practical matter, how it is operated. [00:44:39] Speaker 06: But did you plead anything about the scope of the exemptions and whether those exemptions even applied to the harms that your clients had suffered? [00:44:46] Speaker 01: Those specific facts were not included in the plaintiff's APA claim as it was pled in the operative complaint. [00:44:51] Speaker 01: But again, there are many facts that came out, for example, during the three days of testimony that was taken on their preliminary injunction hearing, that the court expressly declined to even consider in her futility analysis. [00:45:05] Speaker 01: And that is why plaintiffs have taken the position that they should have at least been offered one shot at an amendment to correct any issues that the district court had identified. [00:45:15] Speaker 03: Other questions? [00:45:17] Speaker 03: Thank you very much. [00:45:18] Speaker 03: We appreciate all counsel's argument in this very interesting, challenging case. [00:45:23] Speaker 03: The case just argued is submitted and the court stands in recess or actually adjourned for the day.