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1 BRADLEY S. PHILLIPS (State Bar No. 085263)
STUART N. SENATOR (State Bar No. 148009)
2 SORAYA C. KELLY (State Bar No. 252993)
MUNGER, TOLLES & OLSON LLP
3 355 South Grand Avenue
Los Angeles, CA 90071-1560
4 Telephone: (213)683-9100
Facsimile: (213) 687-3702
5
REBECCA G. LYNCH (state Bar No. 230078)
6 MICHELLE FRIEDLAND (State Bar No. 234124)
MUNGER, TOLLES & OLSON LLP
7 560 Mission Street
San Francisco, CA 94 105-2907
8 Telephone: (415)512-4000
Facsimile: (415) 512-4077
9
CHARLES F. ROBINSON (State Bar No. 113197)
10 CHRISTOPHER M. PATTI (State Bar No. 118283)
MARGARET L. WU (State Bar No. 184167)
11 UNIVERSITY COUNSEL
UNIVERSITY OF CALIFORNIA
12 1111 Franklin Street
Oakland, CA 94607
13 Telephone: (510)987-9800
Facsimile: (510) 987-9757
14 Attorneys for Defendants
15
UNITED STATES DISTRICT COURT
16
CENTRAL DISTRICT OF CALIFORNIA
17
18
ASSOCIATION OF CHRISTIAN CASE NO CV 05-06242-SJO MANx
19 SCHOOLS INTERNATIONAL, et al.,
20 . DEFENDANTS’ MEMORANDUM
Plaintiffs,
.
OF POINTS AND AUTHORITIES
21 IN SUPPORT OF DEFENDANTS’
VS.
MOTION FOR SUMMARY
22 JUDGMENT ON PLAINTIFFS’ AS-
ROMAN STEARNS e t a.,
1
23 APPLIED CLAIMS
Defendants.
24 Date: July 18, 2008
Time: 10:00 a.m.
25 Room: Ctrm. 880
26 Judge: Honorable S. James Otero
27
28
DEFENDANTS’ MEMO OF PS & AS ISO MOTION FOR
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1 TABLE OF CONTENTS
2
Page
3
4 I. INTRODUCTION 1
II. ARGUMENT 2
A. Defendants Are Entitled To Summary Judgment Unless There Is
6 A Genuine Issue Whether A Course Decision Was
Unreasonable 2
7 B. Plaintiff Calvary Lacks Support For Its As-Applied Challenges 5
8 1. English—Christianity and Morality in American
Literature 5
9 2. History—Christianity’s Influence on America 6
10 3. Government—Special Providence: Christianity and the
American Republic 6
11 4. Elective—World Religions 7
12 C. Plaintiffs Lack Standing To Challenge The Other Course
Decisions 8
13 1. ACSI ‘s as-applied claims require individualized proof 9
14 2. The relief that ACSI seeks also requires individualized
proof 13
15 3. Individualized proof is required to determine whether the
Eleventh Amendment bars Plaintiffs’ claims 15
16
17 D. Even If ACSI Had Associational Standing, Defendants Would
Be Entitled To Summary Judgment 16
18 1. ACSI waived as-applied claims for non-Calvary courses 16
19 2. ACSI’s as-applied challenges to the few course decisions
alluded to in its interrogatory response fail on the merits 18
20 3. Plaintiffs’ claims with respect to courses not mentioned
until now are meritless as well 20
21 E. As-Applied Challenges To Some Course Decisions Are Time-
22 Barred 25
23
24
25
26
27
28
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1 TABLE OF AUTHORITIES
2
Page
3
4 FEDERAL CASES
Acri v. Varian Assoc., Inc.,
6 114F.3d999(9thCir. 1997) 4
Action Apartment Ass ‘n, Inc. v. Santa Monica Rent Control Bd.,
7 509 F.3d 1020 (9th Cir. 2007) 25
8 Ahoielei v. Department ofPublic Safety,
488 F.3d fl44 (9th Cir. 2007) 16
9 Alaska Fish & Wildlfe Federation & Outdoor Council, Inc. v. Dunkle,
829 F.2d 933 (9th Cir. 1987) 10, 13, 14
10 A lien v. Wright,
468 U.S. 737, 104 S. Ct. 3315, 82L. Ed. 2d 556 (1984) 8
Alvarez v. Hill,
12 518F.3d1152(9thCir.2008) 11
13 American Baptist Churches in the US.A. v. Meese,
712 F. Supp. 756 (N.D. Cal. 1989) 9, 10
14 Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) 2
15 Arpin v. Santa Clara Valley Transp. Agency,
16 261 F.3d912(9thCir.2001) 2
Artichoke Joe ‘s v. Norton,
17 216 F. Supp. 2d 1084(E.D. Cal. 2002) 15
1 Q Associated General Contractors of California v. Coalitionfor
Economic Equity,
19 950 F.2d 1401 (9th Cir. 1991) 9,10,13
Axson-Fiynn v. Johnson,
20 356F.3d1277(l0thCir.2004) 3
Li
Ayers v. Continental Cas. Co.,
240 F.R.D. 216 (N.D. W.Va. 2007) 17
22 Batra v. Bd. ofRegents of Univ. ofNebraska,
79F.3d717(8thCir. 1996) 4
23 Beech Aircraft Corp. v. United States,
24 51 F.3d 834 (9th Cir. 1995) 23
Bishop v. Wood,
25 426 U.S. 341, 96 5. Ct. 2074, 48 L. Ed. 2d 684 (1976) 4, 24
LU
Cardenas v. Anzai,
311 F.3d929(9thCir.2002) 9
27 Ceiotex Corp. v. Catrett,
477 U.S. 317, 106 S. Ct. 2548,91 L. Ed. 2d 265 (1986) 2
28
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1 TABLE OF AUTHORITIES
2 (continued)
Page
3 Church of the Lukumi Babalu Aye, Inc. v. City ofHialeah,
508 U.S. 520, 113 S. Ct. 2217, 124L. Ed. 2d 472 (1993) 3
Coleman v. Quaker Oats Co.,
5 232F.3d1271(9thCir.2000) 16
Columbia Basin Apartment Ass ‘n v. City ofPasco,
6 268 F.3d 791 (9th Cir. 2001) 13
-, Committee for Reasonable Regulation ofLake Tahoe v. Tahoe
Regional Planning Agency,
8 365 F. Supp. 2d fl46(D. Nev. 2005) 9, 10
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
9 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) 19
10 Environmental Protection Information Center v. Tuttle,
No.C00-0713 SC,2001 WE 114422 (N.D. Cal. Jan. 22,2001) 15
11 Ex parte Young,
209U.S. 1Z3,28S.Ct.441,52L.Ed.2d714(1908) 15
IL
Freeman v. Arpaio,
13 125 F.3d732 (9thCir. 1997) 2,11
Georgia Cemetarv Ass ‘n v. Cox,
14 353F.3d1319’(llthCir.2003) 9
15 Harris v. McRae,
448U.S.297,100S.Ct.2671,65L.Ed.2d784(1980) 11
16 Hunt v. Washington State Apple Advertising Comm ‘n,
432 U.S. 333,97 S. Ct. 2434,53 L. Ed.’2d 383 (1977) 10
17 In re Silicone Gel Breast Implants Prods. Liab. Litig.,
18 318 F. Supp. 2d 879 (C.D. Cal. 2004) 23
International Bhd. of Teamsters v. America West Airlines, Inc.,
19 No. CIV-95-2924-PHX-RGS, 1997 WE 809760 (D. Ariz. Sept. 25,
1997) 11,12
20 Kansas Health Care Ass ‘ii, Inc. v. Kansas Dept. ofSocial and
Rehabilitation Services,
958F.2d1018(l0thCir. 1992) 12
22 Kitzmiller v. Dover Area School District,
400 F. Supp. 2d 707 (M.D. Pa. 2005) 19
23 Kumho Tire Co., Ltd. v. Carmichael,
24 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) 19
Lee v. City ofLos Angeles,
25 250F.3d668(200’l) 3
Lemon v. Kurtzman,
403 U.S. 602,91 S. Ct. 2105, 29L. Ed. 2d 745 (1971) 2
27 Madsen v. Boise State University,
976 F.2d 1219 (9th Cir. 1992) 8
28
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1 TABLE OF AUTHORITIES
2 (continued)
Page
3 Massachusetts Hospital Ass ‘n, Inc. v. Harris,
500 F. Supp. 1270 (D. Mass. 1980) 12
National Coalition Government of Union ofBurma v. Unocal, Inc.,
176 F.R.D. 329 (C.D. Cal. 1997) 12
National Endowment for the Arts v. Finley,
6 524U.S. 569, 118 S. Ct. 2168, 141 L.Ed. 2d500 (1998) 3
Pennell v. City ofSan Jose,
485 U.S. 1, 108 5. Ct. 849, 99 L. Ed. 2d 1(1988) 10
8 Playboy Enters., Inc. v. Pub. Serv. Comm ‘n ofPuerto Rico,
906 F.2d 25 (1st Cir. 1990) 14
Porter v. Jones,
10 319F.3d483 (9thCir. 2003) 15
Rent Stabilization Ass ‘n of City ofNew York v. Dinkins,
11 5F.3d 591 (2dCir. 193) 9,10
12 Reynolds v. County ofSan Diego,
84 F.3d 1162 (9th Cir. 199) 4
13 School Dist. ofA bington Township v. Schempp,
374 U.S. 203,83 S. Ct. 1560, IOL. Ed. 2cf 844(1963) 10, 11
14 Settle v. Dickson County School Board,
15 53 F.3d 152 (6th Cir. 1995) 23
United Food and Commercial Workers v. Brown Group, Inc.,
16 517 U.S. 544, 116 S. Ct. 1529, 134L. Ed. 2d 758 (1996) 8
17 United States R.R. Retirement Bd. v. Fritz,
449U.S. 166, 101 S.Ct.453,66L.Ed.2d368(1980) 21
18 United States v. Hays,
515 U.S. 737, 115 S. Ct. 2431, 132L. Ed. 2d635 (1995) 8
19 United States v. Viltrakis,
20 108F.3d1159(9thCir. 1997) 8
Verizon Maryland, Inc. v. Public Service Comm ‘n of Maryland,
21 535 U.S. 635, 122 S. Ct. 1753, 152 L. Ed. 2d 871 (20G2) 15
22 Wal-Mart Stores, Inc. v. City of Turlock
483 F. Supp. 2d 987 (E.D. Cal. 20065 9
23 Warth v. Seldin,
422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) 8, 9, 10, 13
24 Whitaker v. Ti Snow Co.,
25 151 F.3d 661 (7th Cir. 1998) 16
26
27
28
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1 I. INTRODUCTION
2 This Court has held that UC’s a-g guidelines, related policies and course
3 decisions are constitutional if they are reasonably related to UC’s goal to admit the
4 most qualified students who are prepared for study at UC. Under this rational basis
5 standard, the Court has rejected Plaintiffs’ facial challenges to UC’s guidelines and
6 policies.
7 Plaintiffs’ as-applied challenges were not addressed in Defendants’ first
8 summary judgment motion. Per this Court’s order that Plaintiffs identi& “the
9 specific high school classes they wish to include in their as-applied challenges,”
10 April 23, 2008 Order, Plaintiffs have submitted their List of As-Applied Challenges
11 (“Plaintiffs’ List”). In this motion, Defendants show that those challenges also fail
12 as a matter of law.
13 Defendants are entitled to summary judgment on each of Plaintiffs’ as-
14 applied challenges unless a factfinder could reasonably conclude that there was no
15 rational academic basis for UC’s course decision or that the decision was motivated
16 by animus. Plaintiffs have expressly disclaimed animus, leaving only rationality to
17 be considered. Many of the challenged decisions implemented policies this Court
18 has held reasonable and constitutional; those decisions were therefore reasonable as
19 well. Moreover, Plaintiffs have offered no admissible evidence that any course
20 decision was unreasonable.
21 The Court need only consider four of the dozens of course decisions on
22 Plaintiffs’ List. The rest were offered by schools that are not parties, and Plaintiffs
23 lack standing to raise claims concerning those courses. In any event, Plaintiffs
24 waived such claims by failing to raise them until now—long after both fact and
25 expert discovery closed.’
26
27 An index listing Plaintiffs’ as-applied claims, with page references to the
28 arguments Defendants present about each, is attached as Appendix A.
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1 II. ARGUMENT
2 A. Defendants Are Entitled To Summary Judgment Unless There Is A
3 Genuine Issue Whether A Course Decision Was Unreasonable.
4 Summary judgment shall be granted when, viewing the facts in the light most
5 favorable to the nonmoving party, (1) there is no genuine issue of material fact, and
6 (2) the moving party is entitled to summary judgment as a matter of law. Arpin v.
7 Santa Clara Valley Transp. Agency, 261 F .3 d 912, 919 (9th Cir. 2001). The
8 moving party’s burden may be satisfied by pointing out that there is an absence of
9 evidence to support the other party’s case. Celotex Corp. v. Catrett, 477 U.S. 317,
10 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). A “scintilla of evidence” in
11 support of Plaintiffs’ position is not sufficient to defeat summary judgment; rather,
12 there must be sufficient admissible evidence to support a judgment for the
13 Plaintiffs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505,
14 2512, 91 L. Ed. 2d 202 (1986).
15 Here, Plaintiffs must present sufficient evidence that each of UC’s decisions
16 was unreasonable or motivated by animus. This Court already has determined that
17 UC’s decisions were constitutional if they were reasonably related to UC’s goal of
18 admitting the most qualified students—students who have been taught the
19 knowledge and skills expected for study at UC—and were not the product of
20 animus. Mar. 28, 2008 Order Denying Pltfs’ MSJ and Granting Defs’ Mot. for
21 Partial S.J. (S.J. Order) at 37:18-20 (free speech), 36:1-3 (free exercise), id. at
2
22 48:20-21 (equal protection). Because this Court has held that the a-g guidelines
3
23 2
To prevail on an as-applied free exercise claim, Plaintiffs would need also to show
24 that the challenged course decision substantially burdened their exercise of religion.
Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). There is no evidence that
25 the disapproval of any course substantially burdened anyone’s exercise of religion.
26 This Court already rejected Plaintiffs’ as-applied Establishment Clause
challenges. See S.J. Order 44-47. In any event, Plaintiffs’ claims do not survive
27 the Lemon test. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 5. Ct. 2105,
2111, 29 L. Ed. 2d 745 (1971). UC made its course decisions pursuant to the a-g
28 guidelines, which this Court has already held have a secular purpose. Reviewers’
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1 and policies are constitutional, any course decision that reasonably implemented
2 them is likewise constitutional.
3 To prove animus on their speech claims, Plaintiffs would need to
4 demonstrate that UC “invidious[lyJ.. discriminat{ed]” in order to “suppress[]
.
5 disfavored viewpoints.” National Endowmentfor the Arts v. Finley, 524 U.S. 569,
6 587, 118 S. Ct. 2168, 2178, 141 L. Ed. 2d 500(1998);seealsoAxson-Flynnv.
7 Johnson, 356 F.3d 1277, 1293 (10th Cir. 2004) (courts may override an educator’s
8 judgment only “where the proffered goal or methodology was a sham pretext for an
9 impermissible ulterior motive”). On their free exercise and equal protection claims,
10 Plaintiffs would have to show that the very object of UC’s course reviewers was to
11 oppress or discriminate against AC SI-member schools because of their religion.
12 See Church ofthe Lukumi Babalu Aye, Inc. v. City ofHialeah, 508 U.S. 520, 547,
13 113 S. Ct. 2217, 2234, 124 L. Ed. 2d 472 (1993) (“Legislators may not devise
14 mechanisms. . . designed to persecute or oppress a religion or its practices”)
15 (emphasis added); Lee v. City ofLos Angeles, 250 F.3d 668, 686 (2001) (on an
16 Equal Protection claim, “a plaintiff must show that the defendants acted with an
17 intent or purpose to discriminate”).
18 Here, Plaintiffs have waived any animus argument. S.J. Hearing Tr. at
19 39:13-14 (“We do not intend to argue the case based on proving animus.”).
20 Further, there is no evidence that UC’s reasons for any decision were a pretext for
21 an impermissible motive or made with the intent to discriminate against or oppress
22 religion. Rather, the uncontroverted evidence is that all reviewers acted based on
23 good faith assessments of the academic merits of each course. See Reviewer
24 4
Declarations.
25
Decls. ¶J 4-7; S.J. Order at 33:15-16. This Court also already held that course
26 review creates no entanglement with religion. S.J. Order at 34. And no rational
factfinder could conclude that UC’s course decisions had “the principal or primary
27 effect of. inhibiting religion.” Id. at 33:19-20.
. .
28 In accordance with the Court’s Order, Defendants incorporate by reference
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1 Plaintiffs must therefore prove that a course decision was unreasonable in
2 light of UC ‘ s goal to admit the most qualified students who have the knowledge
3 and skills expected for study at UC (hereinafter, “unreasonable”); to do so,
4 Plaintiffs must “negative every conceivable basis which might support [a course
5 decision].” S.J. Order at 17:20-2 1. The governing “rational basis test is extremely
6 deferential to” UC’s judgments, and “is not a license for courts to judge the
7 wisdom, fairness, or logic of’ UC’s decisions. Id. at 17:14-16. Indeed,
8 “government action may be based on rational speculation unsupported by evidence
9 or empirical data.” Id. at 22:24-25. Thus, disagreement among experts or others
10 about a course decision does not make the decision unreasonable. See Reynolds v.
11 County ofSan Diego, 84 F.3d 1162, 1170 (9th Cir. 1996) (“The fact that an expert
12 disagrees with an officer’s actions does not render the officer’s actions
13 unreasonable.”), overruled on other grounds by Acri v. Varian Assoc., Inc., 114
14 F.3d 999 (9th Cir. 1997). To prove that a decision was unreasonable, plaintiffs
15 would need to prove that no reasonable and informed person could have thought
16 that the decision was just fled.
17 Moreover, mistaken applications of policies that are themselves
18 constitutional are not constitutional violations. “We must accept the harsh fact that
19 numerous individual mistakes are inevitable in the day-to-day administration of our
20 affairs. The United States Constitution cannot feasibly be construed to require
21 federal judicial review for every such error.” Bishop v. Wood, 426 U.S. 341, 349-
22 50, 96 S. Ct. 2074, 2080, 48 L. Ed. 2d 684 (1976) (overruled on other grounds); see
23 also Batra v. Bd. ofRegents of Univ. ofNebraska, 79 F.3d 717, 722 (8th Cir. 1996)
24 (equal protection claim failed because plaintiffs’ evidence was merely “consistent
25 with the proposition that [plaintiffs] were the victims of random government
26 incompetence,” rather than proof of “unlawful, purposeful” discrimination).
27 specified documents that were filed in connection with the prior summary judgment
28 motions. See Appendix B for a list of all abbreviations used herein.
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1 B. Plaintiff Calvary Lacks Support For Its As-Applied ChalIenes.
2 Plaintiffs have no competent evidence that UC’s decisions on Calvary’s
5
3 government, history, English, and religion courses were unreasonable. Defendants
4 are entitled to summary judgment on that basis alone. Moreover, the undisputed
5 evidence demonstrates that these decisions were academically reasonable.
6 1. English—Christianity and Morality in American Literature.
7 This course used as its principal text an anthology of excerpts—American
8 Literature: Classics for Christians, published by A Beka Book (“A Beka”). See
9 Compl. Ex. 5; Otter, Ex. A at 3. But UC expects college-preparatory courses to
10 include full-length works as regular classroom assignments. Li Tab 2(G)(6) at 5;
11 JH ¶ 15. Dr. Stotsky, Plaintiffs’ purported English expert, testified that UC’s rule
12 against reliance on anthologies of excerpts is reasonable. L2 Tab 104. That alone
13 entitles Defendants to summary judgment.
14 Moreover, both UC course reviewers and Defendants’ expert concluded that
15 the Calvary English course and the A Beka anthology were inconsistent with UC’s
16 expectations for teaching critical thinking skills and exposing students to writers’
17 key works. JH ¶ 5; L2 Tab 105; Otter Ex. A; see also Phillips Ex. I. This
18 conclusion is uncontroverted—Dr. Stotsky does not opine whether the course or the
19 anthology is adequate to prepare students for UC. See Watters Tab W [Stotsky
20 Decl.]. Rather, Dr. Stotsky offers a series of irrelevant comparisons to other
21 approved anthologies and Christian school courses. For example, Dr. Stotsky notes
22 that “almost the same list of authors” as on Calvary’s syllabus appears in approved
23 syllabi from three other Christian schools. MF Tab 1. Even if a list of authors
24 could be relevant in the absence of information about which works by those authors
25 (and how much of those works) are assigned—which it cannot be—Dr. Stotsky’s
26 comparison would not suggest discrimination because the approved courses were
27 Unless otherwise noted, “Calvary” refers to Plaintiff Calvary Chapel Christian
28 School of Murrieta.
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1 also from Christian schools. Id.
2 2. History—Christianity’s Influence on America.
3 Dr. Vitz, a psychologist whom Plaintiffs proffer as their “expert” on history
4 and government, offers no opinion whether this course or the Bob Jones University
5 (“BJU”) textbook it used teaches the methods of historical analysis and critical
6 thinking skills expected of students admitted to UC. See Compi. Ex. 3; Watters
7 Tab X [Vitz Deci.]. And, again, Plaintiffs have no other evidence that the course
8 met UC’s academic standards.
9 Further, the uncontroverted evidence demonstrates that UC’s decision was
10 reasonable as a matter of law. UC course reviewers concluded that this course
11 likely would not prepare students for study at UC. NC Tab 2. UC history Professor
12 James Given and Defendants’ expert Professor Gary Nash agreed that the BJU text
13 used in this course fails adequately to teach critical thinking or modern historical
14 analytic methods and therefore that courses relying primarily on the text are not
15 adequate to prepare students for UC. Given ¶J 3-8; Nash Ex. A at 5-21; see also
16 Phillips Ex. F. Professor Nash testified that, while Calvary’s course outline on its
17 face appeared acceptable, this created “a very pronounced dissonance” with the
18 course’s use of the inadequate BJU text. L2 Tab 135, Nash Depo. 129:14-15.
19 Professor Nash testified that it was therefore “certainly reasonable” for UC not to
20 approve the course. Id. at 154:6.
21 3. Government—Special Providence: Christianity and the American
22 Republic.
23 Dr. Vitz does not address whether this course or the BJU textbook it uses
24 would teach the knowledge and skills expected for preparation for UC. See Compi.
25 Ex. 8; Watters Tab X [Vitz Deci. ¶J 3-8, 14-16, 23-24, 27 (purporting to measure
26 “biases” in textbooks by counting lines in the indices—an irrelevant methodology
27 invented for this case)]. Nor do Plaintiffs have any other evidence that the course
28 and textbook met UC’s academic standards.
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1 Moreover, the uncontroverted evidence demonstrates that the denial of a-g
2 credit for this course was reasonable as a matter of law. UC reviewers concluded,
3 and Defendants’ expert, Professor Petracca, Chair of the UC Irvine Department of
4 Political Science, agrees that neither the BJU textbook nor this course would teach
5 the knowledge and skills expected for study at UC, as reflected in the a-g
6 guidelines. NC Tab 3; Petracca Ex. A at 1; see also Phillips Ex. H. Professor
7 Petracca found that, instead of taking the approach to political science used and
8 expected of students at UC, the BJU textbook and Calvary syllabus presented a
9 “doctrinaire approach” that would discourage critical thinking, and that the course
10 failed to cover many “foundational topics.” Petracca Ex. A at 1, 16-17.
11 4. Elective—World Religions.
12 Calvary submitted its world religions course for history/social science credit,
13 but Plaintiffs now appear to claim that it should have been approved as an elective.
14 See NC Tab 4; Plaintiffs’ List (listing course as an Elective). The World Religions
15 course was not approved in part because it was unclear from the course submission
16 whether the course would “treat[] the study of religion from the standpoint of
17 scholarly inquiry,” consistent with UC’s Policy on Religion and Ethics Courses.
18 NC Tab 4; Compl. Ex. 2. Therefore, “the reasonableness of [UC’s] rejection[]
19 dovetails with the reasonableness of the UC Policy on Religion and Ethics
20 Courses,” S.J. Order at 43:12-13, which this Court has already held is
21 constitutional. Id. at 19:7-8.
22 UC also provided additional reasonable and independently sufficient bases
23 for not approving the World Religions course: The syllabus failed to provide
24 detailed information about key assignments and listed a textbook that did not
25 appear to exist. NC Tab 4; ME Tab 2 {SharfDepo. at 188:14-24 (Defendant’s
26 religious studies expert testif,’ing that these were reasonable bases for UC’s
27 decision on this course)].
28
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1 C. Plaintiffs Lack Standing To Challenge The Other Course Decisions.
2 Plaintiffs’ challenges to UC’s decisions on dozens of courses from non-party
3 schools fail for lack of standing, which is “the threshold question in every federal
4 case.” Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343
5 (1975). Standing is a jurisdictional requirement, which cannot be waived and may
6 be raised at any time. United States v. Hays, 515 U.S. 737, 742, 115 S. Ct. 2431,
7 2435, 132 L. Ed. 2d 635 (1995); United States v. Viltrakis, 108 F.3d 1159, 1160
8 (9th Cir. 1997).
9 Plaintiffs other than ACSI indisputably lack standing to challenge UC’s
10 decisions on non-party schools’ courses. See Allen v. Wright, 468 U.S. 737, 751,
11 104 S. Ct. 3315, 3324, 82 L. Ed. 2d 556 (1984) (standing doctrine includes a
12 “general prohibition on a litigant’s raising another person’s legal rights”). ACSI
13 lacks standing in its own right to challenge particular course decisions, because
14 ACSI has never itself submitted courses to UC for approval. See Madsen v. Boise
15 State University, 976 F.2d 1219, 1220-1221 (9th Cir. 1992) (“a plaintiff lacks
16 standing to challenge a rule or policy to which he has not submitted himself by
17 actually applying for the desired benefit.”). Moreover, ACSI does not have
18 “associational standing”—a narrow and limited exception to the general rule that
19 “litigants may not assert the rights of absent third parties,” see United Food and
20 Commercial Workers v. Brown Group, Inc., 517 U.S. 544, 557, 116 5. Ct. 1529,
21 1536, 134 L. Ed. 2d 758 (1996)—to raise as-applied challenges to particular course
22 decisions.
23 To establish associational standing, an organization must show that “(a) its
24 members would otherwise have standing to sue in their own right; (b) the interests
25 it seeks to protect are germane to the organization’s purpose; and (c) neither the
26 claim asserted nor the relief requested requires the participation of individual
27 members in the lawsuit.” Hunt v. Washington State Apple Advertising Comm ‘n,
28 432 U.S. 333, 343, 97 S. Ct. 2434,2441,53 L. Ed. 2d 383 (1977) (emphasis
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1 added).
2 ACSI cannot satisfy the third element. The question whether individual
3 participation by an organization’s members is required depends on the necessity of
4 “individualized proof.” See Warth, 422 U.S. at 492. Associational standing exists
5 only if both “the claims proffered and relief requested do not demand
6 individualized proof.” Associated General Contractors of Cali ornia v. Coalition
7 for Economic Equity, 950 F.2d 1401, 1408 (9th Cir. 1991) (emphasis added); see
8 also Rent Stabilization Ass ‘n of City ofNew York v. Dinkins, 5 F.3d 591, 596 (2d
9 Cir. 1993) (“the relief sought is only half of the story”). While claims seeking only
10 generaliz-ed injunctive relief often will not require individualized proof, courts deny
11 associational standing where claims for injunctive relief do require such proof
12 because of the nature of either the claims or the relief sought. See Georgia
13 Cemetary Ass ‘n v. Cox, 353 F.3d 1319, 1322-23 (11th Cir. 2003) (no associational
14 standing on injunctive claims requiring member participation); Committeefor
15 Reasonable Regulation ofLake Tahoe v. Tahoe Regional Planning Agency, 365 F.
16 Supp. 2d 1146, 1163-64 (D. Nev. 2005) (“Lake Tahoe”) (request for equitable relief
17 “does not per se overcome” third prong of Hunt test); American Baptist Churches
18 in the US.A. v. Meese, 712 F. Supp. 756, 765-66 (N.D. Cal. 1989) (no associational
19 standing for claims requiring members’ individual participation, though
20 organization sought only declaratory and injunctive relief). Here, ACSI fails both
21 aspects of the third prong of the Hunt test. Moreover, individualized proof is
22 necessary to determine whether the Eleventh Amendment bars ACSI’s as-applied
23 claims. See Cardenas v. Anzai, 311 F.3d 929, 935 (9th Cir. 2002).
24 1. ACSI ‘s as-applied claims require individualized proof.
25 AC SI’ s as-applied claims require individualized proof with respect to each
26 member school and its courses, not merely generalized proof with respect to
27 Defendants’ policies. See Wal-Mart Stores, Inc. v. City of Turlock, 483 F. Supp. 2d
28 987, 996-97 (E.D. Cal. 2006) (in an as-applied challenge, the court must analyze a
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1 policy “as applied to the particular case” and evaluate “how it operates in practice
2 against the particular litigant”); Dinkins, 5 F.3d at 597 (rejecting associational
3 standing on as-applied claims because they would require the court to “delv[ej into
4 individual circumstances”). As in Warth, “whatever injury may have been suffered
5 is peculiar to the individual member concerned, and both the fact and extent of
6 injury would require individualized proof.” 422 U.S. at 515-516; see also
7 Associated General Contractors, 950 F.2d at 1408 (third prong of Hunt is met only
8 “when the claims proffered and relief requested do not demand individualized proof
9 on the part of its members”).
10 Courts in the Ninth Circuit have repeatedly held that organizations lack
11 associational standing to bring as-applied constitutional claims, as opposed to facial
12 claims. See e.g., Lake Tahoe, 365 F. Supp. 2d at 1162-65 (as-applied takings
13 claims); American Baptist Churches, 712 F. Supp. at 765-66 (as-applied equal
14 protection claims). In Lake Tahoe, the district court rejected associational standing
15 and observed that, while “[f]acial challenges by their very nature focus on the mere
16 enactment of the statute or ordinance,” as-applied claims challenge “the ordinance
17 through its separate and disparate effects on each of its different members... [thus]
18 necessarily involving those members in [the] dispute.” Lake Tahoe, 365 F. Supp.
19 2d at 1163-64. The Lake Tahoe court expressly distinguished the Supreme Court’s
20 decisions in Hunt and Pennellv. City ofSan Jose, 485 U.S. 1, 108 S. Ct. 849, 99 L.
21 Ed. 2d 1 (1988)—where associational standing was allowed—because those cases
22 involved facial constitutional claims, not as-applied claims. See also Alaska Fish &
23 Wildlife Federation & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 937 (9th Cir.
24 1987) (facial challenge); Associated General Contractors, 950 F.2d at 1405 (same).
25 Resolution of ACSI’s as-applied challenges would require individualized
26 proof. First, ACSI’s as-applied free exercise claims would require individualized
27 evidence with regard to whether UC’s actions substantially burdened each school’s
28 ability to practice its religion. See School Dist. ofAbington Township v. Schempp,
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1 374 U.S. 203, 223, 83 S. Ct. 1560, 1572, 10 L. Ed. 2d 844 (1963) (“[I]t is necessary
2 in a free exercise case for one to show the coercive effect of the enactment as it
3 operates against [the plaintiff] in the practice of his religion.”); Freeman v. Arpaio,
4 125 F.3d 732, 737 (9th Cir. 1997) (“[T]he interference with one’s practice of
5 religion must be more than an inconvenience; the burden must be substantial.”),
6 abrogated on other grounds byAlvarez v. Hill, 518 F.3d 1152, 1156 n.3 (9th Cir.
7 2008). Because a free exercise claim requires a showing of substantial burden on a
8 particular plaintiff, such a claim “ordinarily requires individual participation.”
9 Harris v. McRae, 448 U.S. 297, 320-21, 100 S. Ct. 2671, 2690, 65 L. Ed. 2d 784
10 (1980).
11 Here, as in McRae, individualized proof is “essential to a proper
12 understanding and resolution of [plaintiffs’] free exercise claims.” Id. Indeed, the
13 record evidence demonstrates just how crucial individualized proof would be,
14 because it shows that there are ACSI member schools—including schools whose
15 courses are on Plaintiffs’ List—that have never felt coerced or substantially
16 burdened by UC’s application of its a-g guidelines. For example, ACSI member
17 schools have testified that UC’ s a-g guidelines had never imposed any burden upon
18 or interfered with their schools’ ability to practice their religion (see, e.g., Li Tab
19 43A, Romines Depo. at 3 1:21-32:5, 32:20-33:5; Li Tab 43B, Roberts Depo. at
20 23:7-15); that UC has never discriminated against them or their students based on
21 religion (see, e.g., L2 Tab 88B, Roberts Depo. at 61:24-62:10; L2 Tab 1 iSA,
22 Burton Depo. at 103:14-104:6); and that they continued to offer whatever courses
23 they wanted to teach, regardless of whether UC had not approved the courses for a-
24 g credit (see, e.g., Li Tab 50B, Romines Depo. at 32:16-19; Li Tab 24, Roberts
25 Depo. at 23:16-21; Li Tab 20B, Burton Depo. 38:7-39:1). Because individualized
26 proof would be necessary with respect to each course, ACSI lacks associational
27 standing to assert as-applied free exercise claims. See International Bhd. of
28 Teamsters v. America West Airlines, Inc., No. CIV-95-2924-PHX-RGS, 1997 WL
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1 809760, at *3...5 (D. Ariz. Sept. 25, 1997) (rejecting associational standing because
2 as-applied claims depended upon showings that individual members “indeed felt
3 coerced”); National Coalition Government of Union ofBurma v. Unocal, Inc., 176
4 F.R.D. 329, 343-44 (CD. Cal. 1997) (same).
5 Second, ACSI’s as-applied free speech and equal protection claims would
6 require individualized, school-by-school and course-by-course inquiries. ACSI
7 would need to prove that, with respect to each contested course, it was unreasonable
8 for UC to conclude that the course would not teach the knowledge and skills
9 expected of students admitted to UC. This would require an individualized
10 presentation tailored to the specifics of each course and the decision regarding that
11 course, including possibly presenting testimony from schools regarding their
12 written and oral communications with UC throughout the review process. See JH
13 ¶J 17, 18; MF Tab 3 [Burton Depo. at 78:5-7 (UC’s course review process is a
14 feedback loop or back-and-forth between course reviewers and the schools)]. For
15 this reason as well, ACSI lacks associational standing on its as-applied claims. See
16 Kansas Health Care Ass ‘n, Inc. v. Kansas Dept. ofSocial and Rehabilitation
17 Services, 958 F.2d 1018, 1022-23 (10th Cir. 1992) (no associational standing where
18 court “will be required to examine evidence particular to individual providers”);
19 Massachusetts Hospital Ass ‘n, Inc. v. Harris, 500 F. Supp. 1270, 1276-77 (D.
20 Mass. 1980) (no associational standing where claims required a “hospital-by-
21 hospital determination of the reasonableness” of an agency’s decision).
6
22 6
Individual schools’ participation would be necessary even on such basic issues as
23 which courses were rejected for which reasons. Plaintiffs’ Dr. Stotsky testified that
UC’s articulated bases for rejection of a Redding Adventist Academy English
24 course were unreasonable. But the bases for rejection that Stotsky was discussing
were actually for a course from Redwood Adventist Academy—a different school.
25 See MF Tab 4; MF Tab 5 [Stotsky Depo. at 8 1:20-84:16, 87:16-20]. Similarly, Dr.
Stotsky testified that UC’s bases for rejecting a Grammar and Composition course
26 from Cornerstone Christian School were unreasonable. ME Tab 6 [Stotsky Depo.
27 at 69:21-71:22]. But she was looking at the reasons UC had given for disapproving
the school’s first submission of that course and comparing those to the school’s
28 second submission, not its first. See MF Tab 7; Costales Decl. Tab 21A.
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1 809760, at *3...5 (D. Ariz. Sept. 25, 1997) (rejecting associational standing because
2 as-applied claims depended upon showings that individual members “indeed felt
3 coerced”); National Coalition Government of Union ofBurma v. Unocal, Inc., 176
4 F.R.D. 329, 343-44 (C.D. Cal. 1997) (same).
5 Second, ACSI’s as-applied free speech and equal protection claims would
6 require individualized, school-by-school and course-by-course inquiries. ACSI
7 would need to prove that, with respect to each contested course, it was unreasonable
8 for UC to conclude that the course would not teach the knowledge and skills
9 expected of students admitted to UC. This would require an individualized
10 presentation tailored to the specifics of each course and the decision regarding that
11 course, including possibly presenting testimony from schools regarding their
12 written and oral communications with UC throughout the review process. See JH
13 ¶J 17, 18; MF Tab 3 [Burton Depo. at 78:5-7 (UC’s course review process is a
14 feedback loop or back-and-forth between course reviewers and the schools)]. For
15 this reason as well, ACSI lacks associational standing on its as-applied claims. See
16 Kansas Health Care Ass ‘n, Inc. v. Kansas Dept. ofSocial and Rehabilitation
17 Services, 958 F.2d 1018, 1022-23 (10th Cir. 1992) (no associational standing where
18 court “will be required to examine evidence particular to individual providers”);
19 Massachusetts HospitalAss ‘n, Inc. v. Harris, 500 F. Supp. 1270, 1276-77 (D.
20 Mass. 1980) (no associational standing where claims required a “hospital-by-
21 hospital determination of the reasonableness” of an agency’s decision).
6
22 6
Individual schools’ participation would be necessary even on such basic issues as
23 which courses were rejected for which reasons. Plaintiffs’ Dr. Stotsky testified that
UC ‘s articulated bases for rejection of a Redding Adventist Academy English
24 course were unreasonable. But the bases for rejection that Stotsky was discussing
were actually for a course from Redwood Adventist Academy—a different school.
25 See MF Tab 4; MF Tab 5 [Stotsky Depo. at 81:20-84:16, 87:16-20]. Similarly, Dr.
Stotsky testified that UC’s bases for rejecting a Grammar and Composition course
26 from Cornerstone Christian School were unreasonable. MF Tab 6 [Stotsky Depo.
27 at 69:21-71:22]. But she was looking at the reasons UC had given for disapproving
the school’s first submission of that course and comparing those to the school’s
28 second submission, not its first. See MF Tab 7; Costales Decl. Tab 21A.
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1 2. The relief that ACSI seeks also requires individualized proof.
2 ACSI lacks associational standing for the additional, independent reason that
3 the declaratory and injunctive relief it seeks is specific to each school and each
4 course. Whether such relief is warranted—or even wanted—would depend upon
5 individualized proof, and the relief could not be implemented without each school’s
6 participation. Some decisions have stated that an organizational plaintiff’s request
7 for injunctive or declaratory relief does not ordinarily require individual proof from
8 group members. See, e.g., Warth, 422 U.S. at 515. But those cases have typically
9 involved facial claims where generalized relief would benefit all members of the
10 organization and neither the claim nor the relief depended upon the members’
11 individual circumstances. See, e.g., Columbia Basin Apartment Ass ‘n v. City of
12 Pasco, 268 F.3d 791, 796 (9th Cir. 2001) (facial constitutional claims). As noted
7
13 above, numerous courts have held that, where injunctive relief on as-applied claims
14 would require individual members’ participation or proof, associational standing is
15 notproper. See supra, p. 9-10.
16 AC SI’s requested relief would require school-by-school and course-by-
17 course determinations based upon individualized proof. ACSI seeks an injunction
18 with respect to each of dozens of specific courses at individual schools. The
19 propriety of relief with respect to each would depend upon the specifics of the
20 course, the reasons for UC’s decision, and whether the school still offers or intends
21 to offer the course.
22 Moreover, unlike the general injunctions in other cases, an order that, for
23 example, a biology course at “Christian School # 1” must be reconsidered for a-g
24 credit would provide no benefit to any other ACSI member school. By contrast, in
25 Alaska Fish & Wildlife, an environmental association sought to void two
26
See
7 also, e.g., Associated General Contractors, 950 F.2d 1401, 1405 (9th Cir.
1991) (facial equal protection claim); Alaska Fish & Wildlife, 829 F.2d 933, 937
28 (9th Cir. 1987) (claims seeking to void two agreements based on federal statute).
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1 agreements permitting subsistence hunting by Alaskan Natives based on the
2 Migratory Bird Treaty Act of 1918. See Alaska Fish & Wildlfe, 829 F.2d at 934-
3 35. Because all of the association’s members would benefit similarly from the
4 relief requested, there was no need for individualized proof. See id. at 938 (“the
5 Conservation Fund’s members use the resources in question and have been injured
6 by the decrease in the migratory bird population”). Unlike Alaska Fish & Wildlife
7 and Associated General Contractors, this is not a case where a single declaration
8 applies equally to all members, or where “[t]he same is true for injunctive relief
9 which parallels the declaration.” Playboy Enters., Inc. v. Pub. Serv. Comm ‘n of
10 Puerto Rico, 906 F.2d 25, 35 (1st Cir. 1990). Instead, because the injuries alleged
11 here are individualized and based on specific applications of policy to individual
12 schools and courses, ACSI necessarily seeks separate relief with respect to each
13 course, not generalized relief that would benefit all ACSI members.
14 Thus, as a practical matter, ACSI member schools’ participation would be
15 required to determine the propriety and nature of any relief. Each school would
16 have to be involved to determine, for example, whether it still wants to offer the
17 course in question, see Woollen Tab D [Burton Depo. at 114:9-15 (testifying that a
18 rejected course would “no longer be offered starting next year as we complete our
19 phase-in of new courses”)]; whether it has modified the course or updated the
20 course’s textbooks and reading material, see MF Tab 8 [Harris Depo. at 11:11-
21 12:14 (discussing course evaluation during the school’s ongoing course review
22 cycles)]; and whether it still has the resources to teach the course, see MF Tab 9
23 [Starr Depo. at 117:16-18, 123 :20 (testifying that schools consider “how much it
24 would cost. to offer a course,” and plan their curricula based in part on “financial
. .
25 cost consideration[s]”)J. It is far from clear that the schools would still want to
26 offer these courses, given that, for more than 2/3 of them, the schools now have
27 approved courses in the subjects at issue. See Chong ¶J 2-5. Moreover, because
28 many of the course descriptions are now years old, more than 1/3 are based on what
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1 is no longer the most current version of the relevant textbook. Id., ¶J 6-8.
2 3. Individualized proof is required to determine whether the
3 Eleventh Amendment bars Plaintiffs’ claims.
4 Individualized proof is also necessary to determine whether the Eleventh
5 Amendment bars each of ACSI’s as-applied claims. Whether the narrow exception
6 to the Eleventh Amendment bar announced in Exparte Young, 209 U.S. 123, 28 S.
7 Ct. 441, 52 L. Ed. 2d 714 (1908), applies to each claim turns on “whether [the
8 claim] alleges an ongoing violation of federal law and seeks relief properly
9 characterized as prospective.” Verizon Maryland, Inc. v. Public Service Comm ‘n of
10 Maryland, 535 U.S. 635, 645, 122 S. Ct. 1753, 1760, 152 L. Ed. 2d 871 (2002).
11 Under the doctrine ofExparte Young, suits against an official for prospective relief
12 are generally cognizable, whereas claims for retrospective relief are not. Porter v.
13 Jones, 319 F.3d483, 491 (9thCir. 2003).
14 Thus, individualized proof would be necessary to determine whether each of
15 UC’s challenged course decisions involves any ongoing violation of federal law or
16 is merely an allegedly unlawful past action. If a decision is the latter, the claim is
17 barred. Artichoke Joe’s v. Norton, 216 F. Supp. 2d 1084, 1109-10 (E.D. Cal. 2002)
18 (no declaratory relief allowed under Young for a “wholly past violation”);
19 Environmental Protection Information Center v. Tuttle, No. C 00-07 13 SC, 2001
20 WL 114422, at *4 (N.D. Cal. Jan. 22, 2001) (“Plaintiffs cannot maintain an action
21 [for declaratory and injunctive relief] for past violations”). Only if each particular
22 school presented evidence that it would, in the future, offer the very same course
23 for a-g credit but for UC’s past decision would the Court have jurisdiction under
24 Young. See Porter, 319 F.3d at 491 (holding court had jurisdiction because “the
25 injunctive and declaratory relief that [plaintiffs] seek would prevent future and
26 ongoing illegality”). Absent such evidence, this Court lacks jurisdiction over each
27
28
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1 as-applied claim.
8
2 D. Even If ACSI Had Associational Standing, Defendants Would Be
3 Entitled To Summary Judtment.
4 1. ACSI waived as-applied claims for non-Calvary courses.
5 ACSI waived as-applied claims for non-Calvary courses by not specifically
6 identifying them in its Complaint, interrogatory responses, or expert reports. See
7 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292-94 (9th Cir. 2000) (plaintiff
8 precluded from introducing a new theory of recovery after the close of discovery);
9 Whitaker v. T.J. Snow Co., 151 F.3d 661, 664 (7th Cir. 1998) (plaintiff waived a
10 theory of recovery by not raising it until summary judgment). In the Complaint,
11 Plaintiffs assert claims with respect to only Calvary’s history, government and
12 English courses. See Complaint ¶J 39-49. Defendants’ first interrogatory asked
13 ACSI to “[i]dentify all courses at any ACSI-affiliated school for which Plaintiffs
14 contend a-g approval was improperly refused.” MF Tab 10 [ACSI’s Resp. to Defs’
15 Interrog. No. 1]. The interrogatory defined “identify” to mean “to list the full name
16 of each course, the date a-g approval was sought, the date a-g approval was denied
17 (and the reasons given for that denial), and the names and addresses of the schools
18 that submitted each course.” Id. In its response, ACSI did not disclose that it was
19 contending in this litigation that any particular course not identified in the
20 Complaint was improperly refused a-g approval. ACSI stated only that it was
21 “aware” of some disapproved courses. Id. This response was never supplemented.
9
22 8
Because Plaintiffs first asserted as-applied claims with respect to the non-Calvary
23 Chapel courses when they submitted their List, this is the first opportunity for
Defendants to raise an Eleventh Amendment defense to those claims. Defendants’
24 conduct is thus not “incompatible with an intent to preserve that immunity.” See
Aholelei v. Department ofPublic Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (test
25 for whether a state has waived immunity “is a stringent one”).
26 ACSI wrote:
27 ACSI is aware of various courses of Calvary Christian School being rejected
by UC, is aware of biology and history courses of Grace Baptist Schools of
28 Redding, Cal. being rejected, is aware of biology courses of Calvary Baptist
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1 Likewise plaintiffs’ expert reports do not specifically address the reasonableness of
2 any non-Calvary course decisions. Even when it filed its motion for summary
3 judgment on the whole case, ACSI did not identify the specific group of non-
4 Calvary courses on Plaintiffs’ List as constituting the subjects of its as-applied
5 challenges (although ACSI attached much longer lists of courses for unclear
6 purposes). ACSI has therefore failed to raise as-applied claims with respect to any
7 non-Calvary courses. See Ayers v. Continental Cas. Co., 240 F.R.D. 216,
8 226 (N.D. W.Va. 2007) (“Defendant is entitled to know the factual content of
9 plaintiff’s claims with a reasonable degree of precision.”) (internal quotation marks
10 omitted).
11 At most, ACSI’s interrogatory response placed at issue the biology courses at
12 Grace Baptist and Calvary Baptist—the only schools (besides Calvary) even
13 mentioned. The response could not reasonably be read to preserve as-applied
14 challenges to courses from other schools. The reference to a “history” course at
15 Grace Baptist was not sufficient to alert UC to an as-applied challenge to that
16 school’s World History course, particularly in light of the fact that the only history
17 subject mentioned in the Complaint and Plaintiffs’ expert reports is US. history.
18 Defendants would be prejudiced if Plaintiffs could inject Grace Baptist’s
19 world history course or the other courses on Plaintiffs’ List into this litigation at this
20 late date. Discovery is long closed, and Defendants had no reason to depose the
21 schools in question or to address the courses—or even some of the general
22 subjects—in expert reports.
23
24 Schools of LaVerne, Cal. being rejected, and has heard of various other
biology and physics courses being rejected by UC. ACSI also is aware of
2 UC’s “policy” to reject biology and physics courses using “Christian school
26 textbooks” and its policy to reject religion and ethics courses that study
religion or ethics from one viewpoint or that include among their primary
27 goals the personal religious growth of the student.
28 MFTab1O.
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1 2. ACSI’s as-applied challenges to the few course decisions alluded to
2 in its interrogatory response fail on the merits.
3 Plaintiffs have insufficient evidence to create any genuine issue of fact with
4 respect to the reasonableness of UC’s decisions on the courses alluded to in ACSI’s
5 interrogatory response. Moreover, as with Plaintiff Calvary’s courses,
6 uncontroverted evidence demonstrates that the decisions were reasonable.
7 Calvary Baptist biology course. The Calvary Baptist biology course relied
8 on the A Beka biology textbook as its primary text, and was therefore denied a-g
9 credit in accordance with the Science Position Statement)° This Court has already
10 decided that the Position Statement is reasonable, S.J. Order at 19:24-25, which
11 disposes of the as-applied challenge on this course.
12 Even were the constitutionality of the Position Statement not dispositive,
13 Plaintiffs would have insufficient evidence to create a genuine issue on
14 reasonableness. The report of Dr. Behe, Plaintiffs’ proffered biology expert,
15 discusses whether the A Beka text used in this course “mentions” a checklist of
16 topics but does not address the relevant question whether that text (or the BJU text)
17 teaches the knowledge and skills expected of UC students. See Watters Tab U
18 [Behe Decl. ¶ 4 (Behe “did not consider how much detail or depth” the texts gave
19 to topics)]. In contrast, UC Professor Barbara Sawrey determined and Defendants’
20 biology experts, Professors Kennedy and Ayala, confirmed that the A Beka and
21 BJU texts and courses that rely primarily upon them would not teach the expected
22 knowledge and skills. Sawrey No. 1, ¶ 3; Ayala Ex. A at 3, 13-25; Kennedy Ex. A
23 at 5-7.
24 Plaintiffs might attempt to rely on Dr. Behe’s deposition testimony that, after
25 he prepared his report, he reviewed the Calvary Baptist biology course description
26 and believes it should have been approved. MF Tab 11 [Behe Depo. at 229:22-
27 10
Furthermore, the Grace Baptist biology course is not on Plaintiffs’ List of As-
28 Applied Challenges, and so is not at issue now in any event.
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1 231:3]. However, Dr. Behe did not testify that a contrary view would be
2 unreasonable. Id. Moreover, even if he had, Dr. Behe’s opinions about the validity
3 of the theory of evolution and what he considers “alternatives such as intelligent
4 design or creation,” Watters Tab U [Behe Deci. ¶ 67], are so contrary to accepted
5 principles in biology that his opinions about what should be taught about those
6 subjects are too unreliable to be admissible. See Daubert v. Merrell Dow
7 Pharmaceuticals, Inc., 509 U.S. 579, 594, 113 S. Ct. 2786, 2797, 125 L. Ed. 2d 469
8 (1993) (“reliability assessment” for admissibility under Rule 702 includes
9 “identification of a relevant scientific community and. . . degree of acceptance
10 within that community”); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149,
11 119 S. Ct. 1167, 1175, 143 L.Ed. 2d238(1999)(extendingDaubert’s
12 requirements to all expert testimony). Dr. Behe claims that intelligent design is
13 science, yet “every major scientific association that has taken a position on the issue
14 . . . has concluded that [it] is not.” Kitzmiller v. Dover Area School District, 400
15 F. Supp. 2d 707, 737 (M.D. Pa. 2005). Even Dr. Behe has “concede[dj that
16 [intelligent design] is.. at best ‘fringe science’ which has achieved no acceptance
.
17 in the scientific community.” Id. at 738. Dr. Behe’s own department at Lehigh
18 University has a prominent statement on its webpage disclaiming Dr. Behe’s ideas
19 on evolution. See http://www.lehigh.edukinbios/;
20 http://www.lehigh.edu/—’inbios/news/evolution.htm. There is no genuine issue as to
21 the reasonableness of UC’ s a-g approval requirement that biology courses
22 adequately teach evolution.
23 Grace Baptist world history course.” Plaintiffs likewise have no evidence
24 that the denial for the Grace Baptist world history course was unreasonable. None
25 of Plaintiffs’ expert reports discussed world history at all, let alone this specific
26 course.
27 ‘1
Grace Baptist is also known as Liberty Christian High School. MF Tab 12
28 [Roberts Depo. at 6:14-7:3].
5190579.1 - 19 - DEFENDANTS’ MEMO OF PS & AS ISO MOTION FOR
SUMMARY JUDGMENT ON AS-APPLIED CLAIMS
CASE NO. CV O5-06242-SJO (MANX)
____________________
Case 2:05-cv-06242-SJO-MAN Document 173 Filed 05/28/2008 Page 26 of 38
1 Moreover, uncontroverted evidence again demonstrates that UC’s decision
2 was reasonable as a matter of law. UC history professor James Given reviewed the
3 course and advised that it took an approach inconsistent with the methodology of
4 academic historians and failed to cover non-civilized societies. NC ¶ 16 & Ex. A.
5 UC therefore concluded that the course would not teach the knowledge and skills
6 expected for UC students.
7 3. Plaintiffs’ claims with respect to courses not mentioned until now
8 are meritless as well.
9 Even if Plaintiffs’ as-applied claims with respect to other courses survive
10 defendants’ standing and waiver showings, they fail as a matter of law. There is
11 insufficient evidence that UC’s decisions on these courses were unreasonable.
12 Biology courses. The biology courses in Plaintiffs’ “Group B” all relied
13 upon a BJU or A Beka biology textbook as their primary text, so UC’s decisions
12
14 not to approve these courses were in accordance with the Science Position
15 Statement and therefore constitutional.’ S.J. Order at 19. In any event, Plaintiffs
3
16 have insufficient evidence to create a genuine issue on these courses. As noted,
17 Defendants’ biology experts testified that these textbooks do not teach the
18 knowledge and skills expected of UC students, see supra at 18; Plaintiffs’ expert,
19 Dr. Behe, agrees that pedagogy that imposes beliefs on students, as these textbooks
20 do, is totally inappropriate, for use in a college preparatory course, see S.J. Order at
21 40; see also Phillips Exs. A-E.
22
12
23 Plaintiffs list Bethel Baptists’ “Origins” course in Group B, but that course was
submitted as an elective, not a biology course. The course was not approved as an
24 elective because its focus was “too narrow/too specialized.” NC Tab 7. Plaintiffs
have no evidence that this decision was unreasonable. The claim regarding
25 “Origins” is also time-barred. See infra at 25.
13
26 The Saddleback Valley biology course description identified on Plaintiffs’ List
was approved. See NC ¶ 23 n. 3, Tab 12A. An earlier course, which relied on the
27 BJU text, was rejected using the Checklist Feedback form identified on Plaintiffs’
28 List. See id. Tab 12B.
5190579.1 - 20 - DEFENDANTS’ MEMO OF PS & AS ISO MOTION FOR
SUMMARY JUDGMENT ON AS-APPLIED CLAIMS
CASE NO. Cv 05-06242-SJO (MANX)
Case 2:05-cv-06242-SJO-MAN Document 173 Filed 05/28/2008 Page 27 of 38
1 The courses in Plaintiffs’ “Group A,” with the exception of the Calvary
2 Baptist biology course discussed above, used other textbooks but indicated in their
3 syllabi that biblical creationism would be a focus. See, e.g., NC Tab 14 [Big Valley
4 Christian Biology at 2 (listing “Biblical Creationism” in unit three, and including in
5 the course objectives “observe the order of the universe as a declaration of its
6 creation by God”)]; NC Tab 15 [Calvary Chapel Moreno Biology at UC00267366-
7 67 (“Analyze various creation theories”; “[e]xamine the evidence used to support
8 Creation and Evolution”)]; NC Tab 16 [Redwood Adventist Biology (describing the
9 course as “designed to teach the principles and laws of life and nature from a
10 Creation viewpoint” and listing as a course goal that “the student will choose Christ
11 as his personal savior”)]; NC Tab 17 [Frederick K.C. Price Zoology (“creation” and
12 “creationism” appearing numerous times in course outline)].
13 It is important to emphasize that the relevant issue here is not whether all
14 academic experts would agree with UC’s decisions, but merely whether those
15 decisions were academically reasonable. See United States R.R. Retirement Bd. v.
16 Fritz, 449 U.S. 166, 179, 101 S. Ct. 453,461,66 L. Ed. 2d 368 (1980) (rationality
17 review requires only “plausible reasons”). Plaintiffs must therefore show that a
18 rational factfinder could conclude that no reasonable academician would have
19 denied a-g approval for these courses.
20 Plaintiffs may mistakenly rely on Professor Kennedy’s testimony that he
21 would need more information about the Frederick K.C. Price course and, if that
22 information were satisfactory, he “would be tempted to approve it.” MF Tab 13
23 [Kennedy Depo. at 54:3-9]. Professor Kennedy did not, however, say that it was
24 unreasonable to deny approval. Similarly, Professor Kennedy testified that the
25 Calvary Chapel Moreno course description “would incline [him] toward approval,”
26 but he specifically testified that it would not be unreasonable to deny approval of
27 that course because it uses the BJU text as a secondary text. See id. [62:11-22].
28 Moreover, the testimony of Professor Ayala—one of the nation’s premiere
5190579.1 - 21 - DEFENDANTS’ MEMO OF PS & AS ISO MOTION FOR
SUMMARY JUDGMENT ON AS-APPLIED CLAIMS
CASE NO. CV 05-06242-SJO (MANX)
Case 2:05-cv-06242-SJO-MAN Document 173 Filed 05/28/2008 Page 28 of 38
1 biologists and undisputedly a reasonable academician—that the courses’ emphasis
2 on creationism should preclude their approval establishes that UC’s decisions were
3 reasonable. See IVIF Tab 14 [Ayala Depo. at 97:18-102:4, 106:6-1 18:10J.’
4 English courses. Plaintiffs now challenge for the first time UC’s decisions
5 not to approve five English courses from schools other than Calvary. There is
6 insufficient evidence that any of those decisions were unreasonable. UC’s
7 Checklist Feedback forms indicated that four of the courses were not approved
8 because the schools’ submissions were “[l]acking necessary course information,”
9 and, in each instance, the form specified the category of information the reviewers
10 believed was lacking. NC Tabs 18-22. The fifth course, Kings Christian’s
11 American Literature, relied primarily on an A Beka anthology but also assigned one
12 novel—The Scarlet Letter—and one unspecified Shakespeare play. NC Tab 22.
13 UC’ s Feedback form for the course indicated that it was not approved because it
14 had insufficient academic content—specifically, the form indicated that the amount
15 of “substantial reading/writing” was “not adequate.” Id. The form also asked why
16 a Shakespeare play was assigned in a class on American literature. Id.
17 The report of Plaintiffs’ purported English expert, Dr. Stotsky, does not opine
18 that any of these courses would teach the knowledge and skills expected of students
19 admitted to UC. Plaintiffs may attempt to rely on Dr. Stotsky’s deposition
20 testimony that, after she completed her report, she looked at four of these courses
21 and speculated that there might be “discrimination taking place against the[] syllabi,
22 possibly because.. they were coming from a Christian school.” MF Tab 16
.
23 [Stotsky Depo. at 64:24-65:5]. Her bases for this speculation were that, for three
24 courses that the Feedback forms said lacked necessary information, she believes
25 14
Dr. Behe’s report did not discuss these courses. Though Dr. Behe testified that
26 he would approve the Big Valley course, he did not say a contrary decision would
be unreasonable. MF Tab 1l[Behe Depo. 229:11-231:3]. As noted, Dr. Behe’s
views about teaching what he considers to be alternatives to evolution are too
28 unreliable to be admissible. See supra at 18-19.
5190579.1
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CASE NO. CV O5-06242-SJO (MANX)
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1 sufficient information appears somewhere on the syllabus; and, with regard to the
2 Kings Christian class, she believes it is appropriate to include Shakespeare in an
3 American Literature class. Id. [Stotsky Depo. at 64:11-90:6].
4 Dr. Stotsky’s speculation is neither relevant nor admissible. See In re
5 Silicone Gel Breast Implants Prods. Liab. Litig., 318 F. Supp. 2d 879, 890 (C.D.
6 Cal. 2004) (expert testimony must be “properly grounded, well-reasoned, and not
7 speculative”; one factor in determining whether expert testimony is sufficiently
8 reliable is “whether the expert has adequately accounted for obvious alternative
9 explanations”). Dr. Stotsky herself admitted that she had not concluded that there
10 had been discrimination, and that, before reaching such an opinion, she would need
11 to examine “a very large number of syllabi,” including “rejected syllabi from
12 nonreligious schools,” which she had not done and did not plan to do. ME Tab 16
13 [Stotsky Depo. at 88:9-90:6].’ Professor Otter, Defendants’ English expert,
14 testified that it was reasonable to deny approval to each of these four courses. ME
15 Tab 15 [Otter Depo. at 152:25-175:22].
16 Even if, as Dr. Stotsky suggested, the Checklist forms mistakenly stated that
17 certain information was missing from a syllabus, that would not be proof of
18 discrimination. Settle v. Dickson County School Board, 53 F.3d 152, 156 (6th Cir.
19 1995) (holding that although some of a public school teacher’s justifications for a
20 decision were based on incorrect assumptions, there was “no basis in the record” to
21 support argument that the decision was motivated by discrimination).’ It is
6
22 inevitable that reviewers will overlook some items on some syllabi. Such a lack of
23 15
To the extent Dr. Stotsky’s review of these courses involved determining only
24 whether particular items were mentioned on the syllabi, her “analysis” did not
require expertise and so would not in any event be admissible expert testimony.
25 Beech Aircraft Corp. v. United States, 51 F.3d 834, 842 (9th Cir. 1995) (testimony
26 properly excluded where judge in bench trial could make observations about which
the expert proposed to testify).
27 16
For two of the courses, the purported discrepancy resulted from the fact that Dr.
28 Stotsky was reading a rejection form for a different submission. See supra n. 6.
5190579.1
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SUMMARY JUDGMENT ON AS-APPLIED CLAIMS
CASE NO. CV 05-06242-SJO (MANX)
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1 perfection would not be a constitutional violation. See Bishop, 426 U.S. at 349-50
2 (“individual mistakes are inevitable” and do not constitute constitutional violations)
3 (overruled on other grounds). Indeed, schools that believe UC has made a mistake
4 are invited to resubmit the courses and to point out any apparent oversights, without
5 any penalty, and oversights have been remedied as a result. NC ¶J 21, 22.
6 History and government courses. Plaintiffs also have challenged for the
7 first time UC’s decisions on two U.S. history, one U.S. government, and several
8 world history courses. There is insufficient evidence that denial of credit for these
9 courses was unreasonable. Plaintiff’s purported expert on history and government,
10 Dr. Vitz, has not opined on any of these courses or even mentioned the subject of
11 world history. See Watters Ex. X [Vitz Deci.].
12 Science courses other than biology. Plaintiffs now purport to challenge
13 UC’s decisions on one physical science and two chemistry courses. Plaintiffs have
14 no unreasonableness evidence on the physical science course. None of Plaintiffs’
15 expert reports addressed physical science, let alone this specific course.
16 UC has determined that the decisions to deny approval to the chemistry
17 courses, which decisions were based on the use of the BJU chemistry textbook,
18 may have been mistakes. UC faculty have found the chemistry book to be
19 acceptable, and UC has approved other courses using it. Sawrey ¶3; Wilbur (2d)
20 ¶ 7. Now that UC has become aware of these possible mistakes, UC has contacted
21 the schools in question, both of which currently offer approved chemistry courses
22 using other textbooks, to invite them to submit new course descriptions using the
23 BJU text that would be reviewed on an expedited basis. JH ¶23 & Exs. A, B.
24 Elective courses. All but one of the electives on Plaintiffs’ List were denied
25 approval consistent with UC’s religion and ethics policy. Thus, “the
26 reasonableness of [UC’s] rejection[s] dovetails with the reasonableness of the UC
27 Policy on Religion and Ethics Courses.” S.J. Order at 43:11-13. Accordingly,
28 there is no genuine issue whether Defendants’ rejection of these religion courses
5190579.1
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SUMMARY JUDGMENT ON AS-APPLIED CLAIMS
CASE NO. CV 05-06242-SJO (MANX)
Case 2:05-cv-06242-SJO-MAN Document 173 Filed 05/28/2008 Page 31 of 38
1 was reasonable.
2 The one additional elective course is a speech course. Plaintiffs have no
3 evidence that UC’s decision for that course was unreasonable. None of Plaintiffs’
4 expert reports addressed the subject of public speaking, let alone this course.
5 E. As-Applied Chal1enes To Some Course Decisions Are Time-Barred.
6 “California’s two-year statute of limitations,” which is applicable to section
7 1983 actions, governs all of Plaintiffs’ claims. Action Apartment Ass ‘n, Inc. v.
8 Santa Monica Rent ControlBd., 509 F.3d 1020, 1026 (9th Cir. 2007) (California’s
9 two-year “limitations period applies to all § 1983 claims, regardless of the civil
10 right asserted”). The Complaint was filed on August 25, 2005, so challenges to the
11 following course decisions are time-barred:
12 School Course(s) Rejection Date
13 Redwood Adventist Academy English 11; Biology Aug. 13, 2003
14 Oaks Christian School English 12 July 30, 2003
15 Bethel Christian High School Origins June 23, 2003
16 North Hills’s Christian School Biology; Chemistry March 13, 2003
17 Valley Christian High School Christian Hist. & Doctrine Aug. 2, 2002
18 For this additional reason, Defendants are entitled to summary judgment on
19 7
Plaintiffs’ challenges to these course decisions.’
20
21 DATED: May 28, 2008 MUNGER, TOLLES & OLSON LLP
22
23 By: Is! Michelle Friedland
Michelle Friedland
24
Attorneys for Defendants
25
26
27 17
Defendants could not have objected earlier to the untimeliness of challenges on
28 these courses, because Plaintiffs had not yet asserted those challenges.
5190579.1
- 25 DEFENDANTS’ MEMO OF PS & AS ISO MOTION FOR
SUMMARY AUDGMENT ON AS-APPLIED CLAIMS
CASE NO. CV 05-06242-SJO (MANX)
INDEX OF COURSES AT ISSUE AS DISCUSSED IN DEFENDANTS’ BRIEF
JUSTICIABILITY ARGUMENTS WAIVER ARGUMENTS ON THE MERITS
No Genuine Issue No Genuine
ICostales Dccl. Tab #J Statute of Associational Eleventh Waiver (Lack of
Course Title; School Re: Reasonableness of Issue Re:
Limitations Standing Amendment Notice)
UC Course Decision Animus
Plaintiff Calvary Chapel’s Courses
[1] English (Christianity & x x x
Morality in American (pp. 1516)* (pp. 4-5) (pp. 2-3)
Case 2:05-cv-06242-SJO-MAN
Literature); Calvary Chapel
Christian School of Murrieta
[2] US. History (Christianity’s x x x
Influence on America); (pp. 15-16) (pp. 5-6) (pp. 2-3)
Calvary Chapel Christian
School of Murrieta
[3] US. Government (Special x x
Document 173
Providence: Christianity & the (pp. 15-16) (pp. 6-7) (pp. 2-3)
American Republic); Calvary
Chapel Christian School of
Murrieta
[4] World Religions; Calvary x x x
Chapel Christian School of (pp. 15-16) (p. 7) (pp. 2-3)
Murrieta
Non-Calvary Courses Referred to Only Vaguely in ACSI’s Interrogatory Responses
Filed 05/28/2008
[5] Biology; Calvary Baptist x x x x x
Schools )
5
7
(pp.
-l (pp. 15-16) (pp.16-17) (pp. 18-19) (pp.2-3)
[6] World History, Liberty x x x x x
Christian High School (pp. 7-15) (pp. 15-16) (pp. 16-17) (pp. 19-20) (pp. 2-3)
Page 32 of 38
—1—
5173046.2
JusTIcIABILITY ARGUMENTS WAIVER ARGUMENTS ON THE MERITS
. . . No Genuine Issue No Genuine
LCostales Deci. Tab #1 Statute of Associational Eleventh Waiver (Lack of
. . . . . . Re: Reasonableness of Issue Re:
Course Title; School Limitations Standing Amendment Notice)
UC Course Decision Animus
Non-Calvary Biology (“Group B”) Courses Never Identified During Discovery
[71 Origins; Bethel Christian X X X X X X
High School (Submitted as an (p. 25) (pp. 7-15) (pp. 15-16) (pp. 16-17) (p.
20) (pp. 2-3)
elective, but listed on Plaintiffs’
List as a biology course) —
[8] Biology; Big Valley X X
Case 2:05-cv-06242-SJO-MAN
X X X
(p.
Christian High School (pp. 7-15) (pp. 15-16) (pp. 16-17) 20) (pp. 2-3)
[91 Biology; First Lutheran x x x x x
Jr/Sr High School (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 20) (pp. 2-3)
[10] Biology College Prep; x x x x x
Hillcrest Christian School (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 20) (pp. 2-3)
Document 173
[11] Biology I; North Hills X X X X X
Christian School (p. 25) (pp. 7-15) (pp. 15-16) (p. 20)
(pp. 16-17) (pp. 2-3)
[121 Biology Biology Honors, X X X X X
Saddleback Valley Christian (pp 7-15) (pp 15-16) (pp 16-17) (p 20) (pp 2-3)
School
[13] Biology, Sierra Christian X X X X X
Academy & High School (pp 7-15) (pp 15-16) (pp 16-17) (p 20) (pp 2-3)
Filed 05/28/2008
Non-Calvary Biology (“Group A”) Courses Never Identified During Discovery
[14] Biology; Big Valley x x x x x
Christian High School (pp. 7-15) (pp. 15-16) (pp. 16-17) (pp. 20-21) (pp. 2-3)
Page 33 of 38
-2-
5173046.2
JusTIcIABILITY ARGUMENTS WAIVER ARGUMENTS ON THE MERITS
. . . No Genuine Issue
(Costales Dccl. Tab #1 Statute of Associational Eleventh Waiver (Lack of No Genuine
. . . . . . Re: Reasonableness of Issue Re:
Course Title; School Limitations Standing Amendment Notice)
UC Course Decision Animus
[15] Biology, Calvary Chapel X X X X X
Chnstian School (Moreno) (pp 7-15) (pp 15-16) (pp 16-17) (pp 20-21) (pp 2-3)
[16] Biology; Redwood X X X X X X
Adventist Academy (p. 25) (pp. 7-15) (pp. 15-16) (pp. 16-17) (pp. 20-21) (pp. 2-3)
[17] Zoology, Frederick K C X X X X X
Case 2:05-cv-06242-SJO-MAN
Pnce III School (pp 7-15) (pp 15-16) (pp 16-17) (pp 20-21) (pp 2-3)
Non-Calvary English Courses Never Identified During Discovery
-
[18] English 10; Frederick K C x x x x x
Price III School (pp. 7-15) (pp. 15-16) (pp. 16-17) (pp. 22-24) (pp. 2-3)
[19] English II; Redwood X X X X X X
Document 173
Adventist Academy (p. 25) (pp. 7-15) (pp. 15-16) (pp. 16-17) (pp. 22-24) (pp. 2-3)
-
[20] English 12 The Art of X X X X X X
Inquiry; Oaks Christian School (p. 25) (pp. 7-15) (pp. 15-16) (pp. 16-17) (pp. 22-24) (pp. 2-3)
[21] Grammar and X X X X X
Composition, Cornerstone (pp. 7-15) (pp. 15-16) (pp. 16-17) (pp. 22-24) (pp. 2-3)
Christian School
[22] American Literature;
Filed 05/28/2008
X X X X X
Kings Christian High School (pp. 7-15) (pp. 15-16) (pp. 16-17) (pp. 22-24) (pp. 2-3)
Non-Calvary History and Government Courses Never Identified During Discovery
[23] American History; x x x x x
Armona Union Academy (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 24) (pp.2-3)
Page 34 of 38
3-
5173046.2
JusTIcIABILITY ARGUMENTS WAIVER ARGUMENTS ON THE MERITS
. . . No Genuine Issue
[Costales Dccl. Tab #] Statute of Associational Eleventh Waiver (Lack of No Genuine
. . . . . . Re: Reasonableness of Issue Re:
Course Title; School Limitations Standing Amendment Notice)
UC Course Decision Animus
[24] American Government X X X X X
(Honors); Horizon Junior & (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 24) (pp. 2-3)
Senior High School
[25] US. History, US. History X X X X X
Honors; Redding Christian (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 24) (pp. 2-3)
High School
Case 2:05-cv-06242-SJO-MAN
[26] World History; Armona X X X X X
Union Academy (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 24) (pp. 2-3)
[27] World History I, II, III; X X X X X
Grace Brethren High (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 24) (pp. 2-3)
[28] World History 9; The X X X X X
King’s Academy
Document 173
(pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 24) (pp. 2-3)
[29] World History, Redding X X X X X
Christian High School (pp. 7-15) (pp.. 15-16) (pp. 16-17) (p. 24) (pp. 2-3)
Non-Calvary Science Courses Never Identified During Discovery
[30] Chemistry; North Hills X X X X X X
Christian School (p. 25) (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 24) (pp. 2-3)
Filed 05/28/2008
[311 Chemistry, Saddleback X X X X X
Valley Chnstian Schools (pp 7-15) (pp 15-16) (pp 16-17) (p 24) (pp 2-3)
[32] Physical Sciences (CP), X X X X X
Calvary Chapel High School (pp 7-15) (pp 15-16) (pp 16-17) (p 24) (pp 2-3)
(Santa Ana)
Page 35 of 38
-4-
5173046.2
Ju5TIcIABILITY ARGUMENTS WAIVER ARGUMENTS ON THE MERITS
Statute of Associational
No Genuine Issue No Genuine
ICostales Dccl. Tab #] Eleventh Waiver (Lack of
Course Title; School Limitations Re: Reasonableness of Issue Re:
Standing Amendment Notice)
UC Course Decision Animus
Non-Calvary Elective Courses Never Identified During Discovery
[33] Ancient Hebrew x x x x x
Literature & Basic Logic; (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 24) (pp. 2-3)
Capistrano Valley Christian
Schools
Case 2:05-cv-06242-SJO-MAN
[34] Christian History & X X X X X X
Doctrine; Valley Christian (p. 25) (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 24) (pp. 2-3)
High School
[35] Introduction to x x x x x
Philosophy & World View; (pp. 7-15) (pp. 15-16) (pp. 16-17) (p.24) (pp. 2-3)
Kings Christian High School
[36] Philosophy II Honors; x x x x x
Document 173
Apple Valley Christian School (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 24) (pp. 2-3)
[37] Philosophy & Ethics. x x x x x
Relationships; Capistrano (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 24) (pp. 2-3)
Valley Christian Schools
[38] Speech; First Lutheran x x x x x
Jr/Sr High School (pp. 7-15) (pp. 15-16) (pp. 16-17) (p. 25) (pp. 2-3)
Filed 05/28/2008
*
All page numbers refer to Defendants’ Memorandum of Points & Authorities ISO Defendants’ Motion for Summary Judgment on Plaintiffs’ As-Applied Claims.
Page 36 of 38
-5-
5173046.2
Case 2:05-cv-06242-SJO-MAN Document 173 Filed 05/28/2008 Page 37 of 38
1 APPENDIX B
2
Declaration Date Filed Citation Abbr.
3 Declaration of Francisco Ayala in Aug 29, 2007 Ayala
4 Opposition to Plaintiffs’ Motion for
Summary Judgment
5 Declaration of Nina Costales in Opposition Aug. 29, 2007 Costales
to Plaintiffs’ Motion for Summary Judgment
6 Declaration of James Given in Opposition to Aug. 29, 2007 Given
Plaintiffs’ Motion for Summary Judgment
7
Declaration of Donald Kennedy in Aug. 29, 2007 Kennedy
8 Opposition to Plaintiffs’ Motion for
Summary Judgment
9 Declaration of Rebecca Lynch in Support of Aug. 8, 2007 Li
Defendants’ Motion for Partial Summary
10 Judgment
11 Declaration of Rebecca Lynch in Opposition Aug. 29, 2007 L2
to Plaintiffs’ Motion for Summary Judgment
12 Declaration of Gary Nash in Opposition to Aug. 29, 2007 Nash
Plaintiffs’ Motion for Summary Judgment
13 Declaration of Samuel Otter in Opposition Aug. 29, 2007 Otter
14 to Plaintiffs’ Motion for Summary Judgment
Declaration of Mark Petracca in Opposition Aug. 29, 2007 Petracca
15 to Plaintiffs’ Motion for Summary Judgment
Declaration of Bradley Phillips Aug. 29, 2007 Phillips
16 (Authenticating Excerpts of Textbooks) in
17 Opposition to Plaintiffs’ Motion for
Summary Judgment
18 Declaration of Barbara Sawrey in Aug. 29, 2007 Sawrey
Opposition to Plaintiffs’ Motion for
19 Summary Judgment
Declaration of Kevin Watters re Aug. 8, 2007 Watters
20
Authenticity of Depositions
21 Declaration of Susan Wilbur in Opposition Aug. 29, 2007 Wilbur
to Plaintiffs’ Motion for Partial Summary
22 Judgment
Declaration of Troy Woollen re Authenticity Aug. 29, 2007 Woollen
23
of exhibits and depositions in Opposition to
24 Defendants’ Motion for Partial Summary
Judgment
25 Declaration of Michelle Friedland in May 28, 2008 1VIF
Support of Defendants’ Motion for Summary
26 Judgment on Plaintiffs’ As-Applied Claims
27 Declaration of Nina Costales in Support of May 28, 2008 NC
Defendants’ Motion for Summary Judgment
28 on Plaintiffs’ As-Applied Claims
5190579.1
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DEFENDANTS’ MEMO OF PS & AS ISO MOTION FOR
SUMMARY JUDGMENT ON AS-APPLIED CLAIMS
CASE NO. Cv 05-06242-SJO (MANX)
Case 2:05-cv-06242-SJO-MAN Document 173 Filed 05/28/2008 Page 38 of 38
1 Declaration Date Filed Citation Abbr.
Declaration of Jeanne Hargrove in Support May 28, 2008 JH
2
of Defendants’ Motion for Summary
3 Judgment on Plaintiffs’ As-Applied Claims
Declaration of Elizabeth Chong in Support May 28, 2008 Chong
4 of Defendants’ Motion for Summary
Judgment on Plaintiffs’ As-Applied Claims
5 Declarations of Carla Fern, Theresa Rizzo, May 28, 2008 Reviewers
6 Gayle Paisley, Bernice Curtis, and 8
Decls.’
Elizabeth Summer in Support of
7 Defendants’ Motion for Summary Judgment
on Plaintiffs’ As-Applied Claims
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Carla Fern, Theresa Rizzo, Gayle Paisley, Bernice Curtis, Elizabeth Summer,
25 and Karen Taylor, along with Jeanne Hargrove and Nina Costales, are all of the
reviewers who have reviewed course submissions for UC since January 2003. See
26 Costales Decl. ¶ 24. Defendants are concurrently submitting declarations from all
of these reviewers other than Karen Taylor, who has been out of the country and
27 unreachable. Defendants will submit a declaration from Karen Taylor before the
28 deadline for Plaintiffs to file their opposition papers.
5190579.1
- 32 - DEFENDANTS’ MEMO OF PS & AS ISO MOTION FOR
SUMMARY JUDGMENT ON AS-APPLIED CLAIMS
CASE NO. CV O5-06242-SJO (MANX)