Elizabeth Hunter v. Usedu

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIZABETH HUNTER; VERONICA No. 23-35174

BONIFACIO PENALES; ALEX

DURON; ZAYN SILVA; RACHEL D.C. No. 6:21-cv-

MOULTON; VICTORIA JOY 00474-AA

BACON; HAYDEN BROWN;

BROOKE C.; GARY CAMPBELL;

TRISTAN CAMPBELL; NATALIE OPINION

CARTER; RACHEL HELD;

LAUREN HOEKSTRA; CHANDLER

HORNING; JONATHAN JONES;

ASHTIN MARKOWSKI;

CAMERON MARTINEZ;

MACKENZIE MCCANN; DARREN

MCDONALD; SCOTT MCSWAIN;

JAYCEN MONTGOMERY;

JOURNEY MUELLER; JAKE

PICKER; DANIELLE POWELL;

SPENCER J. VIGIL; LUCAS

WILSON; AUDREY

WOJNAROWISCH; DANIEL

TIDWELL-DAVIS; DEVIN

BRYANT; SAREN CRIAG; JAMIE

LORD; CONSOLATA BRYANT;

JUSTIN TIDWELL-DAVIS; MEGAN

STEFFEN; MORTIMER

HALLIGAN, on behalf of themselves

and all others similarly situated,

2 HUNTER V. USDOE

Plaintiffs-Appellants,

ANDREW HARTZLER; KALIE

HARGROVE; SABRINA

BRADFORD; CLOVER ST.

HUBERT; ALICE MURPHY;

VIOLET ADAMS,

Appellants,

v.

U.S. DEPARTMENT OF

EDUCATION; CATHERINE E.

LHAMON, in her official capacity as

Assistant Secretary for the Office of

Civil Rights, U.S. Department of

Education,

Defendants-Appellees,

WESTERN BAPTIST COLLEGE,

DBA Corban University; WILLIAM

JESSUP UNIVERSITY; PHOENIX

SEMINARY; COUNCIL FOR

CHRISTIAN COLLEGES &

UNIVERSITIES,

Intervenor-Defendants-

Appellees.

HUNTER V. USDOE 3

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted July 16, 2024

San Francisco, California

Filed August 30, 2024

Before: MILAN D. SMITH, JR., MARK J. BENNETT,

and ANTHONY D. JOHNSTONE, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY *

Title IX

The panel affirmed the district court’s dismissal of an

action brought by LGBTQ+ students against the Department

of Education challenging a religious exemption to Title IX,

which prohibits gender discrimination at federally funded

educational institutions but carves out an exception for

religious institutions whose tenets mandate gender-based

discrimination.

The district court dismissed for failure to state a claim

plaintiffs’ claims that Title IX’s religious exemption

establishes a religion in violation of the First Amendment

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 HUNTER V. USDOE

and violates the equal protection guarantee of the Fifth

Amendment, and dismissed for lack of Article III standing

plaintiffs’ challenge to the Department’s implementing

regulations of Title IX as arbitrary and capricious under the

Administrative Procedure Act (APA).

The panel declined to apply the invited error doctrine—

which provides that a party may not complain on review of

errors below for which he is responsible—or the waiver

doctrine—which provides that issues not presented to the

trial court cannot generally be raised for the first time on

appeal—and proceeded to the merits of plaintiffs’

Establishment Clause claim. The panel held that Title IX’s

religious exemption does not violate the First Amendment’s

Establishment Clause under the historical practices and

understanding test set forth in Kennedy v. Bremerton School

District, 597 U.S. 507 (2022). First, the history of tax

exemptions for religious organizations near the time of the

Founding suggests that statutory exemptions that operate as

a subsidy to religious institutions do not violate the

Establishment Clause according to its original

meaning. Second, case law evinces a continuous, century-

long practice of governmental accommodations for religion

that the Supreme Court and this court have repeatedly

accepted as consistent with the Establishment Clause.

The panel affirmed the district court’s dismissal of

plaintiffs’ claim that Title IX’s religious exemption violates

the equal protection guarantee. The panel held that it need

not decide whether intermediate scrutiny or rational basis

review applies because the exemption would survive the

more demanding intermediate scrutiny standard. The

exemption substantially relates to the achievement of

limiting government interference with the free exercise of

religion. The exemption does not give a free pass to

HUNTER V. USDOE 5

discriminate on the basis of sex to every institution; it

contains limits that ensure that Title IX is not enforced only

where it would create a direct conflict with a religious

institution’s exercise of religion.

The panel held that the district court appropriately

dismissed, for lack of standing, plaintiffs’ claim under the

APA challenging as arbitrary and capricious an amendment

to Title IX’s implementing regulations, the August 2020

Rule, which clarified that institutions are not required to

submit a written statement prior to invoking the religious

exemption. None of plaintiffs’ allegations suggested that the

Rule caused an individual plaintiff harm.

Finally, the panel held that the district court did not abuse

its discretion in denying plaintiffs leave to amend their

complaint.

COUNSEL

Alletta S. Brenner (argued) and Megan Houlihan, Perkins

Coie LLP, Portland, Oregon; Paul C. Southwick, Paul

Southwick Law LLC, Portland, Oregon; for Plaintiffs-

Appellants.

Ashley C. Honold (argued) and Melissa N. Patterson,

Appellate Staff Attorneys; Carol Federighi, Senior Trial

Counsel, Civil Division, Federal Programs Branch; Natalie

K. Wight, United States Attorney; Brian M. Boynton,

Principal Deputy Assistant Attorney General; United States

Department of Justice, Washington, D.C.; for Defendants-

Appellees.

Christopher P. Schandevel (argued) and Kristen K.

Waggoner, Alliance Defending Freedom, Lansdowne,

6 HUNTER V. USDOE

Virginia; David A. Cortman, Alliance Defending Freedom,

Lawrenceville, Georgia; Ryan J. Tucker and Mark A.

Lippelmann, Alliance Defending Freedom, Scottsdale,

Arizona; John J. Bursch, Bursch Law PLLC, Caledonia,

Michigan; Gene C. Schaerr (argued), Annika B. Barkdull,

and Nicholas P. Miller I, Schaerr Jaffe LLP, Washington,

D.C.; Herbert G. Grey, Herbert G. Grey Attorney at Law,

Beaverton, Oregon; for Intervenor-Defendants-Appellees.

Rebecca B. Cassady, Richardson Wang LLP, Portland,

Oregon; for Amici Curiae Dr. Rachel M. Schmitz, Dr.

Meridith G.F. Worthen, Dr. Dawne Moon, and Five More

Sociologists.

Caitlin V. Mitchell, Johnson Johnson Lucas & Middleton

PC, Eugene, Oregon; for Amicus Curiae Higher Education

Researchers.

Christopher A. Perdue, Assistant Attorney General;

Benjamin Gutman, Solicitor General; Ellen F. Rosenblum,

Oregon Attorney General; United States Department of

Justice, Office of the Oregon Attorney General, Salem,

Oregon; Rob Bonta, California Attorney General, United

States Department of Justice, Office of the California

Attorney General, Sacramento, California; William Tong,

Connecticut Attorney General, United States Department of

Justice, Office of the Connecticut Attorney General,

Hartford, Connecticut; Brian L. Schwalb, District of

Columbia Attorney General, United States Department of

Justice, Office of the District of Columbia Attorney General,

Washington, D.C.; Philip J. Weiser, Colorado Attorney

General, United States Department of Justice, Office of the

Colorado Attorney General, Denver, Colorado; Kathleen

Jennings, Delaware Attorney General, United States

Department of Justice, Office of the Delaware Attorney

HUNTER V. USDOE 7

General, Wilmington, Delaware; Anne E. Lopez, Hawaii

Attorney General, United States Department of Justice,

Office of the Hawaii Attorney General, Honolulu, Hawaii;

Aaron M. Frey, Maine Attorney General, United States

Department of Justice, Office of the Maine Attorney

General, Augusta, Maine; Andrea Joy Campbell,

Commonwealth of Massachusetts Attorney General, United

States Department of Justice, Office of the Commonwealth

of Massachusetts Attorney General, Boston, Massachusetts;

Keith Ellison, Minnesota Attorney General, United States

Department of Justice, Office of the Minnesota Attorney

General, St. Paul, Minnesota; Matthew J. Platkin, New

Jersey Attorney General, United States Department of

Justice, Office of the New Jersey Attorney General, Trenton,

New Jersey; Michelle A. Henry, Pennsylvania Attorney

General, United States Department of Justice, Office of the

Pennsylvania Attorney General, Harrisburg, Pennsylvania;

Charity R. Clark, Vermont Attorney General, United States

Department of Justice, Office of the Vermont Attorney

General, Montpelier, Vermont; Kwame Rauol, Illinois

Attorney General, United States Department of Justice,

Office of the Illinois Attorney General, Chicago, Illinois;

Anthony G, Brown, Maryland Attorney General, United

States Department of Justice, Office of the Maryland

Attorney General, Baltimore, Maryland; Dana Nessel,

Michigan Attorney General, United States Department of

Justice, Office of the Michigan Attorney General, Lansing,

Michigan; Letitia James, New York Attorney General,

United States Department of Justice, Office of the New York

Attorney General, New York, New York; Aaron D. Ford,

Nevada Attorney General, United States Department of

Justice, Office of the Nevada Attorney General, Carson City,

Nevada; Peter F. Neronha, Rhode Island Attorney General,

8 HUNTER V. USDOE

United States Department of Justice, Office of the Rhode

Island Attorney General, Providence, Rhode Island; Robert

W. Ferguson, Washington Attorney General, United States

Department of Justice, Office of the Washington Attorney

General, Olympia, Washington; for Amicus Curiae Oregon

and 19 Other States.

Eli J. Hare, DiCello Levitt LLP, Birmingham, Alabama;

Amy Keller, DiCello Levitt LLP, Chicago, Illinois; David A.

Straite, DiCello Levitt LLP, New York, New York; for

Amici Curiae Five LGBTQ+ Student Leaders at Private

Religious Universities.

Jeremy M. Creelan, Rémi J.D. Jaffré, and Owen W. Keiter,

Jenner & Block LLP, New York, New York; Michelle S.

Kallen, Jenner & Block LLP, Washington, D.C.; for Amici

Curiae Dr. H.L. Himes and Dr. Theresa Stueland Kay.

Eric C. Rassbach and Daniel L. Chen, The Hugh and Hazel

Darling Foundation Religious Liberty Clinic, Pepperdine

University, Caruso School of Law, Malibu, California; for

Amicus Curiae the Jewish Coalition for Religious Liberty.

David M. Andersen, Steven M. Sandberg, and Madelyn L.

Blanchard, Brigham Young University, Office of the

General Counsel, Provo, Utah; for Amici Curiae Association

of Catholic Colleges and Universities, Brigham Young

University, and Thirteen Additional Religious Colleges and

Universities.

Alan J. Reinach, Church State Council, Westlake Village,

California; for Amici Curiae Seven Scholars and

Researchers and Church State Council.

HUNTER V. USDOE 9

OPINION

M. SMITH, Circuit Judge:

Title IX, a landmark law prohibiting gender

discrimination at federally funded educational institutions,

carves out an exception for religious institutions whose

tenets mandate gender-based discrimination. 20 U.S.C.

§ 1681(a). Plaintiffs are lesbian, gay, bisexual, transgender,

and/or nonbinary (LGBTQ+) students who applied to or

attended religious institutions and alleged that they

experienced discrimination on the basis of their sexuality or

gender identity. They brought suit against the Department

of Education (Department), claiming that Title IX’s religious

exemption violates the equal protection guarantee of the

Fifth Amendment and establishes a religion in violation of

the First Amendment. They also challenge the Department’s

implementing regulations of Title IX as arbitrary and

capricious under the Administrative Procedure Act (APA).

The district court dismissed the complaint and denied leave

to amend on all claims.

This case addresses, among other issues, the question of

whether Congress’s attempt to balance the important

interests of religious freedom and gender-based equality

violated the Constitution. Because we hold that Congress

did not exceed its constitutional boundaries, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Statutory and Regulatory Background

Title IX prohibits certain educational institutions from

receiving federal funding if they exclude, deny benefits to,

or subject to discrimination any person “on the basis of sex.”

20 U.S.C. § 1681(a). We have recently interpreted this

10 HUNTER V. USDOE

provision to prevent federally funded educational

institutions from discriminating against gay or transgender

students. See Grabowski v. Ariz. Bd. of Regents, 69 F.4th

1110, 1116 (9th Cir. 2023); see also Bostock v. Clayton

County, 590 U.S. 644, 660 (2020) (“[I]t is impossible to

discriminate against a person for being homosexual or

transgender without discriminating against that individual

based on sex” in the context of Title VII.). Title IX does not

prohibit discrimination, however, when an educational

institution “is controlled by a religious organization if the

application of [Title IX] would not be consistent with the

religious tenets of such organization.” 20 U.S.C.

§ 1681(a)(3).

The Department, the agency responsible for providing

federal financial assistance pursuant to Title IX, promulgates

implementing regulations that describe appropriate methods

for invoking this religious exemption. See 34 C.F.R.

§ 106.12. The first regulations implementing Title IX

provided that “[a]n educational institution which wishes to

claim the [religious] exemption . . . shall do so by submitting

in writing to [the Assistant Secretary for Civil Rights (the

Assistant Secretary)] a statement . . . identifying the

provision of [the Title IX implementing regulations] which

conflict with a specific tenet of the religious organization.”

40 Fed. Reg. 24128, 24129 (June 4, 1975).

Although the 1975 regulation appears to require a

writing invoking the exception in advance of an institution

claiming the exception in an individual case, long-standing

Department practice indicates that submitting a writing was

only one permissive way for a religious institution to claim

the exception. See 83 Fed. Reg. 61462, 61482 (Nov. 29,

2018) (providing that, consistent with “longstanding

Department practice,” “[t]he statutory text of Title IX offers

HUNTER V. USDOE 11

an exemption to religious entities without expressly

requiring submission of a letter”).

In 2020, the Department amended the Title IX

regulations to clarify that institutions are not required to

submit a written statement prior to invoking the exemption.

See Nondiscrimination on the Basis of Sex in Education

Programs or Activities Receiving Federal Financial

Assistance, 85 Fed. Reg. 30026, 30031, 30475–82 (May 19,

2020) (the August 2020 Rule, the 2020 Rule, or the Rule).

The revised regulation provides that an institution “may”

submit a written request to the Assistant Secretary requesting

an exemption. 34 C.F.R. § 106.12(b) (emphasis added). The

regulation also specifies that the institution “may . . . raise

its exemption” after the Department notifies the institution

that it is under investigation for noncompliance. Id.

II. Factual and Procedural Background

Plaintiffs are LGBTQ+ students who applied to,

attended, or currently attend religious colleges and

universities that receive federal funding. They allege that

religious institutions discriminated against them on the basis

of sex, specifically due to their sexual orientations and

gender identities, by, inter alia, subjecting them to discipline,

rejecting their applications for admission, or rescinding their

admissions.

Thirty-three Plaintiffs sued the Department in March

2021. Seven new Plaintiffs later joined the original thirty-

three. They alleged several causes of action against the

Department: (1) a Fifth Amendment substantive due process

and equal protection claim, (2) two claims under the First

Amendment alleging violations of the Establishment Clause

and deprivations of freedom of religion, speech, assembly,

and association, (3) a claim under the APA challenging the

12 HUNTER V. USDOE

2020 Rule, and (4) a claim under the Religious Freedom

Restoration Act.

Between June and August of 2021, thirty-five of the

Plaintiffs filed Title IX administrative complaints. On

August 5, 2021, Plaintiffs moved for a temporary restraining

order, which the district court denied on August 30, 2021.

Plaintiffs also moved for a preliminary injunction. The

Department moved to dismiss the First Amended Complaint

(FAC). Later, intervenors, including the Council for

Christian Colleges and Universities (CCCU) and several

private religious schools (Religious Schools) (together, the

Intervenors, and with the Department, the Defendants), filed

a separate, joint motion to dismiss.

The district court held a three-day evidentiary hearing on

the preliminary injunction in November 2021. On

December 2, 2021, Plaintiffs moved to amend the FAC to

(1) add factual allegations that Plaintiffs filed administrative

complaints, (2) adjust the prayer for relief to be consistent

with their motion for a preliminary injunction, and

(3) include eight new plaintiffs.

On January 12, 2023, the district court denied Plaintiffs’

motion for preliminary injunction and dismissed the FAC

with prejudice. Relevant here, the district court dismissed

the APA claim for lack of Article III standing and dismissed

both the Fifth Amendment equal protection claim and First

Amendment Establishment Clause claim for failure to state

a claim. Because the district court found that amendment

would not cure the FAC’s defects, it denied Plaintiffs’

pending motion to file a Second Amended Complaint

(SAC).

Plaintiffs timely appealed the district court’s dismissal of

the First Amendment, APA, and Fifth Amendment claims

HUNTER V. USDOE 13

and argue that the district court erred in denying them leave

to amend.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C.

§§ 1331, 1361, 2201, 2202, and 5 U.S.C. § 702. We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo a district court’s grant of a motion to dismiss.

Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). We

review a denial of a motion to amend a complaint for abuse

of discretion. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080,

1087 (9th Cir. 2002).

ANALYSIS

I. Establishment Clause Claim

The relevant portion of the First Amendment provides

that, “Congress shall make no law respecting an

establishment of religion.” U.S. CONST. amend. I. The

district court dismissed Plaintiffs’ claim that the Title IX

exemption violates the Establishment Clause but, in doing

so, applied the then-abandoned legal standard articulated in

Lemon v. Kurtzman, 403 U.S. 602 (1971). On appeal,

Plaintiffs ask us to vacate the district court’s order and

remand for consideration of the Establishment Clause claim

under Kennedy v. Bremerton School District, 597 U.S. 507

(2022), in the first instance. They argue in the alternative

that, on the merits, 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,” “prefer[s] religion

to irreligion,” and “conscripts federal employees as

ecclesiastical inquisitors.”

14 HUNTER V. USDOE

The Department asks us to hold that Plaintiffs invited the

error and thus cannot succeed on appeal. Similarly, the

Religious Schools ask us to hold that Plaintiffs waived the

argument. We decline both requests and hold that, on the

merits, the Title IX exemption does not violate the

Establishment Clause.

A. We decline to apply the invited error and waiver

doctrines.

We begin by briefly surveying the muddled background

that underlies our evaluation of this procedural issue. For

decades, courts deciding Establishment Clause violations

did so under the three-part test set forth in Lemon. There,

the Supreme Court “attempted a ‘grand unified theory’ for

assessing Establishment Clause claims.” Kennedy, 597 U.S.

at 534 (quoting Am. Legion v. Am. Humanist Ass’n, 588 U.S.

29, 84 (2019) (Gorsuch, J., concurring in the judgment)).

The Lemon test “called for an examination of a law’s

purposes, effects, and potential for entanglement with

religion.” Id. (citing Lemon, 403 U.S. at 612–13). On

August 9, 2021, when the Department moved to dismiss

Plaintiffs’ Establishment Clause claim, the Department

asked the district court to apply Lemon.

The Intervenors took a different approach and asked the

court to apply an originalism-based test. They explained

why the exemption was “consistent with history and

tradition,” noting that “[s]ince 1971, courts have

sporadically applied . . . Lemon.” The Intervenors argued

that “the Supreme Court has largely discarded Lemon and

adopted an approach that ‘looks to history for guidance’—

asking whether a particular action is consistent with

‘historical practices and understandings.’” (quoting Am.

Legion, 588 U.S. at 61 (plurality opinion)).

HUNTER V. USDOE 15

In response to Intervenors’ motion to dismiss, Plaintiffs

were silent on whether and how a history and tradition test

would apply. Hunter v. Dep’t of Educ., No. 6:21-cv-00474,

Dkt. 143 at 20. Then, on June 27, 2022, the Supreme Court

issued Kennedy, clarifying that it “long ago abandoned

Lemon and its endorsement test offshoot.” 597 U.S. at 534.

The Court explained that, instead, “the Establishment Clause

must be interpreted by “reference to historical practices and

understandings,” drawing the line between permissible and

impermissible government action in a way that “accord[s]

with history and faithfully reflect[s] the understanding of the

Founding Fathers.” Id. at 535–36 (quoting Town of Greece

v. Galloway, 572 U.S. 565, 576, 577 (2014) (cleaned up)).

The Intervenors filed a notice of supplemental

authorities before the district court, alerting it to the recent

Kennedy decision and explaining that “courts applying

Lemon do so in error.” Hunter, 6:21-cv-00474, Dkt. 172 at

3–4. Plaintiffs did not respond to the notice’s arguments

about Kennedy, even though they represented to the district

court that they would do so in additional briefing. See

generally id. At oral argument, Plaintiffs represented to us

that they did not file a response on the issue because, prior

to deciding Defendants’ motions to dismiss, the district court

expressed its frustration with the case’s excessive briefing.

Without Plaintiffs’ response to Kennedy, the district court

issued its order granting the Defendants’ motions to dismiss

on January 12, 2023, applied the Lemon test without

mentioning Kennedy, and noted that “Plaintiffs [do not]

dispute that the three-prong test announced in Lemon

applies.”

The district court erred by applying the Lemon test

without reference to the historical practices and

understandings of the Establishment Clause. See Kennedy,

16 HUNTER V. USDOE

597 U.S. at 535. The district court ruled on the Defendants’

motions to dismiss six months after the Supreme Court

issued Kennedy, which clearly instructed that Lemon was

“long ago abandoned.” Id. at 534. Thus, the district court

had the benefit of Kennedy’s instruction, with notice from

the Intervenors about its application to the case, see Hunter,

6:21-cv-00474, Dkt. 172 at 3–4, but ignored it. In fact, the

district court order does not cite to or explicitly consider

Kennedy at all.

Despite this error, the Department asks us to decline to

address the Establishment Clause claim on appeal because

“[P]laintiffs did not advance any arguments in district court

based on Kennedy or the historical-analysis test, which

existed prior to Kennedy.” Thus, according to the

Department, the panel should apply the invited error

doctrine. Id.

The invited error doctrine states that a party “may not

complain on review of errors below for which he is

responsible.” Sovak v. Chugai Pharm. Co., 280 F.3d 1266,

1270 (9th Cir. 2002) (quoting Deland v. Old Republic Life

Ins. Co., 758 F.2d 1331, 1336–37 (9th Cir. 1985)). It applies

where a party “introduced, or directly set in motion, the error

of which he complain[s].” United States v. Magdaleno, 43

F.4th 1215, 1220 (9th Cir. 2022). The Ninth Circuit has

“never applied the invited error doctrine in a circumstance”

where “there is no indication that [the party] introduced the

alleged error.” Id. at 1220.

There is no indication that Plaintiffs introduced the error

here. As explained above, the Department asked the district

court to apply Lemon when it initially moved to dismiss in

August 2021. Although the Intervenors asked the district

court to apply the historical analysis test in their motion to

HUNTER V. USDOE 17

dismiss, that test was not the law of the circuit at the time.

See Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1017

(9th Cir. 2021) (applying objective observer entanglement

test under Santa Fe Independent School District v. Doe, 530

U.S. 290 (2000)), rev’d, 597 U.S. 507 (2022). Plaintiffs

responded to Intervenors’ motion without reference to the

historical analysis test and remained silent on whether it

should apply. See Hunter v. Dep’t of Educ., No. 6:21-cv-

00474, Dkt. 143 at 20. And Plaintiffs again remained silent

when Intervenors notified the district court that the historical

practices test should apply after Kennedy. Because Plaintiffs

did not “introduce” or “directly set [the error] in motion,” the

invited error doctrine does not apply here. See Magdaleno,

43 F.4th at 1220. 1

We also decline to apply the waiver doctrine. Issues “not

presented to the trial court cannot generally be raised for the

first time on appeal.” United States v. Flores-Payon, 942

F.2d 556, 558 (9th Cir. 1991). This is true whether the

argument is one “in support of a motion to dismiss or an

argument establishing that dismissal is inappropriate.”

Zixiang Li v. Kerry, 710 F.3d 995, 1000 n.4 (9th Cir. 2013)

(quoting G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d

534, 538 (7th Cir. 2012)). Several exceptions apply,

including if (1) there are “exceptional circumstances”

explaining why the issue was not raised below, (2) “the new

issue arises while the appeal is pending because of a change

in the law,” (3) “the issue presented is purely one of law and

1

The only case the Department refers to, Sovak v. Chugai

Pharmaceutical Company, comes out against its position. 280 F.3d at

1270. There, we held that it was not invited error where the district court

erroneously applied state law when it should have applied federal law.

Id. The appealing party correctly asked the district court to apply federal

law, so the invited error doctrine did not apply. See id.

18 HUNTER V. USDOE

the opposing party will suffer no prejudice as a result of the

failure to raise the issue in the trial court,” or (4) “plain error

has occurred and an injustice might otherwise result.”

Flores-Payon, 942 F.2d at 558. The issue presented fits

under the third exception. The district court’s analysis of the

Establishment Clause claim under Kennedy was purely one

of law. Defendants suffered no prejudice from the Plaintiffs’

failure to submit additional briefing because the Intervenors

had notified the district court of Kennedy’s existence and

application to the case. Defendants had the opportunity to

explain why they should win under a history and tradition

test several times, including prior to Kennedy’s issuance and

in the Intervenors’ notice to the district court. Thus, we

proceed to the merits.

B. The exemption does not violate the Establishment

Clause under the historical practices and

understanding test.

To determine whether government action violates the

Establishment Clause, the panel must “focus[] on original

meaning and history.” Kennedy, 597 U.S. at 536 (citing

Town of Greece, 572 U.S. at 575). Any practice that was

“accepted by the Framers and has withstood the critical

scrutiny of time and political change” does not violate the

Establishment Clause. Town of Greece, 572 U.S. at 577.

We begin with the historical practices that help to inform

the original meaning of the Establishment Clause in its

application to religious exemptions. “As history must play

such a vital part in understanding what the Bill of Rights

requires, it is . . . appropriate to note that at the time this

charter of freedom was written, no massive programs of

federal aid to the public existed.” Kong v. Scully, 341 F.3d

1132, 1139 (9th Cir. 2003). Because no identical exemption

HUNTER V. USDOE 19

existed at the Founding, we must use the historical analogues

that are available.

The Department contends that such historical analogues

may be found in the “substantial evidence of a lengthy

tradition of . . . exemptions for religion” at or near the time

of the Founding. (quoting Gaylor v. Mnuchin, 919 F.3d 420,

427–36 (7th Cir. 2019); Bd. of Educ. of Kiryas Joel Vill. Sch.

Dist. v. Grumet, 512 U.S. 687, 723 (1994) (Kennedy, J.,

concurring in judgment)). Specifically, it refers us to tax

exemptions for religious organizations as far back as 1802.

See Gaylor, 919 F.3d at 427–36; see also Gibbons v. District

of Columbia, 116 U.S. 404 (1886)).

While there is certainly a long history of tax exemptions

for religious organizations dating to the early Republic,

Plaintiffs argue that those exemptions are not analogous to a

statutory exemption to a requirement for voluntary

acceptance of federal funding. Plaintiffs argue that Title IX

only applies to institutions who willingly accept federal

funding. In other words, those who do not wish to comply

with Title IX need not accept funding and thus are not

burdened by the government. According to Plaintiffs, the

exemption then violates the Establishment Clause because it

acts as a subsidy to religious institutions.

Given the dearth of historical equivalents, however, tax

exemptions are the most analogous case to Title IX’s

statutory exemption. As we described them in Kong, tax

exemptions for religious institutions are really “[s]ubsid[ies]

of buildings of worship,” which is “a universal practice of

state and federal government.” 341 F.3d at 1139 (citing

Walz v. Tax Comm’n, 397 U.S. 664 (1970)). Just as a school

is not required to accept federal funding, a religious

institution is not required to own property. Even so,

20 HUNTER V. USDOE

religious institutions are constitutionally exempted from

paying property taxes. Both the statutory exemption to Title

IX and property tax exemptions operate as a financial benefit

to non-secular entities that similarly situated secular entities

do not receive. And they were deemed constitutional

without a requirement that the exemption only apply if the

tax conflicted with a specific tenet of the religion. Even if

Title IX’s exemption is a “benefit” instead of a “burden,”

“[a] variety of benefits have been bestowed by government

on religious practices and either have been unchallenged or

passed constitutional muster without fatal compromise of

principle.” Id. at 1139. Absent additional historical

evidence—and Plaintiffs point us to none here—the history

of tax exemptions near the time of the Founding suggests

that the statutory exemptions that operate as a subsidy to

religious institutions do not violate the Establishment Clause

according to its original meaning.

Having considered the history of religious exemptions at

or near the Founding, the history and tradition test requires

us to look next to the “uninterrupted practice” of a law in our

nation’s traditions. Kennedy, 597 U.S. at 536 (quoting Walz,

397 U.S. at 680). The Department identifies a relevant

tradition in “modern legislative efforts to accommodate

religious practice.” See, e.g., Cutter v. Wilkinson, 544 U.S.

709, 719–20 (2005) (prisoner religious accommodations);

Corp. of Presiding Bishop of Church of Jesus Christ of

Latter-day Saints v. Amos, 483 U.S. 327, 334 (1987) (Title

VII exemption); Walz, 397 U.S. at 672–80 (religious

property tax exemption); Zorach v. Clauson, 343 U.S. 306,

315 (1952) (released time program); Arver v. United States,

245 U.S. 366, 376 (1918) (draft exemption); Goldman v.

United States, 245 U.S. 474, 476 (1918) (same); Kong, 341

F.3d at 1139–40 (payments under Medicare and Medicaid

HUNTER V. USDOE 21

Acts for the nonmedical care of persons whose religious

tenets lead them to reject medical services); Droz v. Comm’r,

48 F.3d 1120, 1124 (9th Cir. 1995) (Social Security tax

exemption); Int’l Ass’n of Machinists & Aerospace Workers,

Lodge 751 v. Boeing Co., 833 F.2d 165, 170–71 (9th Cir.

1987) (Title VII religious accommodation); Tooley v.

Martin-Marietta Corp., 648 F.2d 1239, 1244–45 (9th Cir.

1981) (similar).

Though most of these cases were decided under the

Lemon test, they evince a continuous, century-long practice

of governmental accommodations for religion that the

Supreme Court and our court have repeatedly accepted as

consistent with the Establishment Clause. The examples

provided by the Department demonstrate that religious

exemptions have “withstood the critical scrutiny of time and

political change.” Town of Greece, 572 U.S. at 577. And

given that this exact law did not exist at the Founding, that

more recent (albeit, still lengthy) tradition is of greater

salience.

Plaintiffs make several arguments that, despite the long

tradition of statutory religious accommodations, the Title IX

exemption still violates the Establishment Clause. First,

Plaintiffs argue that the exemption prefers religion to

irreligion, impermissibly “singling out religious institutions

for special benefits.” We disagree. In Amos, the Supreme

Court held that Title VII’s similar exemption for religious

institutions from religious non-discrimination in

employment, even when the job function is secular, does not

violate the Establishment Clause. 483 U.S. at 338. While

Amos was decided under Lemon and does not reference

historical practices or understandings, it does make the

logical point that no religious accommodation could stand if

we held that this type of accommodation prefers religion

22 HUNTER V. USDOE

over irreligion. See id; Cutter, 544 U.S. at 720 (holding that

the Religious Land Use and Institutionalized Persons Act’s

(RLUIPA) prisoner religious accommodation provision was

compatible with the Establishment Clause “because it

alleviates exceptional government-created burdens on

private religious exercise”). Given that the government

“sometimes must” accommodate religion, the exemption

does not prefer religion to irreligion for simply carving

religious behavior out of the statute.

The cases cited by Plaintiffs do not discuss the historical

practices and understanding of the Establishment Clause as

relevant here. See Kiryas Joel, 512 U.S. at 696 (delegating

public school authority to religious group is

unconstitutional); Tex. Monthly, Inc. v. Bullock, 489 U.S. 1,

15 (1989) (exempting religious publications from sales tax

failed under the Lemon test); Torcaso v. Watkins, 367 U.S.

488, 490–91 (1961) (requiring public officers to declare a

belief in God is similar to pre-Founding religious oath

requirements). In fact, Kiryas Joel makes clear that the state

need not “be oblivious to impositions that legitimate

exercises of state power may place on religious belief and

practice.” 512 U.S. at 705. The government “may (and

sometimes must) accommodate religious practices.” Id.

(quoting Hobbie v. Unemployment Appeals Comm’n of Fla.,

480 U.S. 136, 144 (1987)).

Second, Plaintiffs argue that the exemption

“discriminates between religious sects and is available only

to some religious groups—those whose tenets are

inconsistent with an application of Title IX.” This argument

fails. The statute facially applies to any religious

organization for which the religious tenets would not be

consistent with the application of Title IX. 20 U.S.C.

§ 1681(a)(3). See Cutter, 544 U.S. at 724 (“RLUIPA . . .

HUNTER V. USDOE 23

confers no privileged status on any particular religious sect,

and singles out no bona fide faith for disadvantageous

treatment.”). And there is no evidence in the record that the

exemption here “was drafted with the explicit intention of

including particular religious denominations and excluding

others.” Larson v. Valente, 456 U.S. 228, 254 (1982). Under

Plaintiffs’ view, the only constitutional alternative would be

to exempt any religious institution from the statute without

regard to its tenets—a less narrowly tailored law. The

Constitution does not require such a result.

Third, Plaintiffs contend that the exemption

impermissibly “conscripts federal employees as

ecclesiastical inquisitors, charged with ascertaining the

‘religious tenets’ of each school and determining whether a

particular application of Title IX is consistent with the

teachings of that denomination.”

The Department must “accept the ecclesiastical

decisions of church tribunals as it finds them.” Serbian E.

Orthodox Diocese v. Milivojevich, 426 U.S. 696, 698, 713

(1976) (overturning a state supreme court decision holding

that a church did not comply with its own laws and

regulations in removing the respondent as bishop of the

church); see also Our Lady of Guadalupe Sch. v. Morrissey-

Berru, 591 U.S. 732, 761–62 (2020) (holding that “[w]hen a

school with a religious mission entrusts a teacher with the

responsibility of educating and forming students in the faith,

judicial intervention into disputes between the school and the

teacher threatens the school’s independence in a way that the

First Amendment does not allow”); Presbyterian Church v.

Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393

U.S. 440, 447, 450 (1969) (“[T]he decisions of the proper

church tribunals on matters purely ecclesiastical, although

24 HUNTER V. USDOE

affecting civil rights, are accepted in litigation before the

secular courts as conclusive . . . .”).

It clearly does so. Here, when a school claims an

exemption, the Department must make two

determinations—whether the school is controlled by a

religious organization and whether Title IX would conflict

with the religious tenets of the controlling organization. 20

U.S.C. § 1681(a)(3). The Department has, as pleaded in the

FAC, “never rejected an educational institution’s assertion

that it is controlled by a religious organization” and “never

denied a religious exemption when a religious educational

institution asserts a religious objection.”

We are not persuaded that this type of facially neutral

religious accommodation violates the Establishment Clause.

II. Equal Protection Claim

The relevant portion of the Fifth Amendment provides

that “[n]o person shall . . . be deprived of life, liberty, or

property, without due process of law,” U.S. CONST. amend.

V, and ensures equal protection of the law. Buckley v. Valeo,

424 U.S. 1, 93 (1976) (per curiam), abrogated on other

grounds. Plaintiffs contend that the Title IX exemption

violates this equal protection guarantee because it “targets

Americans for disfavored treatment based on their sex,

including targeting based on sexual orientation and gender

identity.” They claim that the exemption is facially

discriminatory, motivated by discriminatory animus, and

unconstitutional as applied to Plaintiffs. Specifically, they

argue that we should apply intermediate scrutiny and hold

that the exemption does not meet that high standard.

Defendants, on the other hand, argue that we should apply

rational basis review, which they contend the exemption

easily withstands.

HUNTER V. USDOE 25

Because the exemption would survive the more

demanding intermediate scrutiny standard, we need not

decide which standard applies. A statute passes intermediate

scrutiny when it “serve[s] important governmental

objectives” and is “substantially related to achievement of

those objectives.” Craig v. Boren, 429 U.S. 190, 197 (1976).

The exemption seeks to accommodate religious educational

institutions’ free exercise of religion. The free exercise of

religion is “undoubtedly, fundamentally important.”

California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018); see

also Amos, 483 U.S. at 339 (noting that a “legitimate

purpose” includes “limiting governmental interference with

the exercise of religion”); Thomas v. Rev. Bd. of Ind. Emp.

Sec. Div., 450 U.S. 707, 717–18 (1981) (acknowledging that

denying a benefit to a person due to conduct mandated by

his religious beliefs constitutes a burden on the free exercise

of religion).

The exemption substantially relates to the achievement

of limiting government interference with the free exercise of

religion. As the Department states, the “statutory limitations

on its application ensure a substantial fit between [ends and]

means.” It only exempts educational institutions

(a) controlled by religious institutions and (b) only to the

extent that a particular application of Title IX would not be

consistent with a specific tenet of the controlling religious

organization. See 20 U.S.C. § 1681(a)(3). The exemption

does not give a free pass to discriminate on the basis of sex

to every institution; it contains limits that ensure that Title

IX is not enforced only where it would create a direct conflict

with a religious institution’s exercise of religion. See id.

Thus, the exemption substantially relates to a

26 HUNTER V. USDOE

“fundamentally important” governmental interest. Azar,

911 F.3d at 582. 2

As we have previously expressed sitting en banc: “We

do not in any way minimize the ostracism that LGBTQ+

students may face because of certain religious views. . . .”

Fellowship of Christian Athletes v. San Jose Unified Sch.

Dist. Bd. of Educ., 82 F.4th 664, 695 (9th Cir. 2023) (en

banc). We acknowledge that the discrimination LGBTQ+

individuals face (both on religious campuses and outside of

them) is invidious and harmful. However, “the First

Amendment’s Free Exercise Clause guarantees protection of

those religious viewpoints even if they may not be found by

many to be ‘acceptable, logical, consistent, or

comprehensible.’” Id. (quoting Fulton v. City of

Philadelphia, 593 U.S. 522, 532 (2021)). Title IX’s

religious exemption does not violate the Fifth Amendment’s

Equal Protection guarantee.

III. APA Claim

The district court appropriately dismissed Plaintiffs’

APA claim for lack of Article III standing. To establish

standing, a plaintiff “must demonstrate (i) that she has

suffered or likely will suffer an injury in fact, (ii) that the

injury likely was caused or will be caused by the defendant,

and (iii) that the injury likely would be redressed by the

requested judicial relief.” FDA v. All. for Hippocratic Med.,

602 U.S. 367, 380 (2024).

In the FAC, Plaintiffs claimed that the Department’s

August 2020 Rule was arbitrary and capricious under the

APA because it “eliminated transparency and notice for

2

We decline to address the Religious Schools’ argument that the

exemption is required by the First Amendment’s Free Exercise clause.

HUNTER V. USDOE 27

students applying to and enrolled at religious educational

institutions that discriminate based on sexual orientation or

gender identity” by removing the language from the prior

rule that, according to Plaintiffs, required a submitted letter

before requesting an exemption in an individual case. They

further claim that the institutions “rely on the August 2020

Final Rule to maintain vague and indeterminate policies and

practices with respect to compliance with Title IX as applied

to LGBTQ+ students,” and that the Rule “exposes more

LGBTQ+ students to the risk of abuse, harassment and loss

of their constitutional rights at taxpayer-funded, religious

colleges and universities.” On appeal, Plaintiffs underscore

that their injury rests on the lack of advance notice to the

students applying to and attending the religious schools,

rather than on any injury from the schools’ increased

likelihood to qualify for an exemption. In other words,

Plaintiffs do not contend on appeal that the August 2020

Rule made it any more likely that the schools could

permissibly discriminate under Title IX, only that it deprived

the Plaintiffs of advance notice that their schools could or

would discriminate against them.

The district court found that the Plaintiffs failed to plead

causation, because after “review[ing] Plaintiffs’ evidence in

the form of expert witnesses, hours of hearing testimony,

hundreds of exhibits, multitudes of declarations, and legal

briefing,” it concluded that Plaintiffs did not allege that the

2020 Rule contributed to universities “conceal[ing] their

discriminatory practices from students.” Specifically, the

district court held that “Plaintiffs do not allege how any of

the schools they attend are more likely to qualify for a

religious exemption now, under the 2020 [R]ules they

challenge, than they would have been previously” because

even under the prior rule, the Department “never rejected an

28 HUNTER V. USDOE

educational institution’s assertion that it is controlled by a

religious organization.” Finally, the district court concluded

that Plaintiffs’ requested relief would not redress their

alleged injuries, as they did not plead that invalidation of the

2020 Rule would “alter either the behavior of the religious

schools or the outcomes of discrimination complaints or

religious exemption requests filed with Defendants under

Title IX.”

We need not reach the question of whether Plaintiffs

suffered injury in fact because we hold that the August 2020

Rule did not cause their injuries. Causation is “ordinarily

substantially more difficult to establish” “when (as here) a

plaintiff challenges the government’s ‘unlawful regulation

(or lack of regulation) of someone else.” Id. at 382 (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)).

To thread the causation needle in cases where a regulation

does not regulate plaintiffs, they must show that the

regulated third parties “will likely react in predictable ways”

that in turn will likely injure plaintiffs. Id. at 383. Those

links must not be “too speculative or attenuated.” Id. There

are a variety of “familiar circumstances where government

regulation of a third-party . . . may be likely to cause injury

in fact to an unregulated plaintiff.” Id. at 384. Evidence of

injury that existed prior to a challenged rule cannot suffice

to show Article III standing. California v. Texas, 593 U.S.

659, 677 (2021).

Although Plaintiffs argue that students would have

chosen to apply to or attend different schools if they had

advance notice of the schools’ discriminatory policies,

Plaintiffs do not refer us to any student who applied to and

accepted admission to attend their religious institution after

HUNTER V. USDOE 29

the 2020 Rule. 3 Nor does any Plaintiff allege that the August

2020 Rule caused any school’s change in policy or specific

instance of discrimination. To cite a few examples, Plaintiff

Zayn Silva was denied admission to his desired university

six months prior to implementation of the August 2020 Rule,

while Plaintiff Kalie Hargrove re-enrolled in Lincoln

Christian University in 2019, prior to the 2020 Rule, and

does not allege that the August 2020 Rule induced the

school’s discrimination against her for her transgender

identity. As another example, Plaintiff Veronica Bonifacio

Penales started attending Baylor University in 2019, prior to

the 2020 Rule, and does not allege that any of Baylor’s

policies changed after the Rule’s implementation. And in

2017, Plaintiff Jonathan Jones began attending Azusa

Pacific University, which rescinded its allowance of same-

sex dating in 2019, all prior to the 2020 Rule.

Plaintiffs do not claim that any institution is more likely

to obtain an exemption after the Rule. Nor do they contest

that the prior practice of the Department was not to require a

prior written statement from an institution before granting it

an exemption. Thus, any student who began attending a

religious university prior to the 2020 Rule was equally as

likely to experience discrimination without recourse before

and after the Rule went into effect. None of the allegations

that Plaintiffs refer us to suggest that the Rule caused any

individual Plaintiff harm. Indeed, the FAC states the

3

Although there are 48 Plaintiffs alleging injury in the SAC, we include

in our discussion only the individuals to whom the Plaintiffs cited in their

briefing on appeal. We note, however, that all the Plaintiffs in both the

operative FAC and the proposed SAC either experienced injury prior to

the August 2020 Rule, had prior notice that their schools would

discriminate against them, or failed to allege that the August 2020 Rule

caused their schools to discriminate against them.

30 HUNTER V. USDOE

opposite: that the Department has never, either before or

after the August 2020 Rule, denied a religious exemption

from a religious educational institution.4

Plaintiffs’ argument that “at least some schools would

not have discriminated until they had submitted written

requests for exemptions” is too speculative. Plaintiffs would

need to plead that they experienced institutional

discrimination after the 2020 Rule and that the 2020 Rule

caused that discrimination. They do not, so they cannot

establish Article III standing.

IV. Motion to Amend

The district court did not abuse its discretion in denying

Plaintiffs leave to amend the complaint. “Leave to amend

may be denied if the proposed amendment is futile or would

be subject to dismissal.” Wheeler v. City of Santa Clara, 894

F.3d 1046, 1059 (9th Cir. 2018). None of Plaintiffs’

proposed amendments, give us reason to believe that they

could plead that the exemption would not survive

intermediate scrutiny, that they have evidence that the

original understanding of the Establishment Clause would

prohibit the Title IX exemption, or that any Plaintiff was

injured because of the August 2020 Rule.

4

Plaintiffs also allege that the August 2020 Rule “has emboldened

schools that discriminate against LGBTQ+ students,” implying that

more frequent or more severe discrimination is traceable to the Rule.

Even assuming such an increase has occurred since the 2020 Rule took

effect, Plaintiffs’ allegations that the Rule caused the increase are

conclusory. They do not specify how the 2020 Rule emboldens

institutions—which are no more likely to receive exemptions today than

before the Rule—to engage in additional discrimination. Plaintiffs’

assertions of an indirect emboldening effect are thus too speculative and

attenuated to establish standing.

HUNTER V. USDOE 31

CONCLUSION

The judgment of the district court is AFFIRMED.