20-56156 Appellees Opening BR

Case: 20-56156, 06/14/2021, ID: 12143745, DktEntry: 23, Page 1 of 96
No. 20-56156
___________________________________________________________________________________________________________________
In the United States Court of Appeals for the Ninth Circuit
JOANNA MAXON, ET AL.,

Plaintiffs-Appellants,
v.
FULLER THEOLOGICAL SEMINARY, ET AL.,

Defendants-Appellees.
Appeal from the United States District Court

for the Central District of California
Honorable Consuelo B. Marshall
(2:19-cv-09969-CBM-MRW)
__________________________________________________________________
APPELLEES’ ANSWERING BRIEF

_________________________________________________________________
KEVIN S. WATTLES DANIEL H. BLOMBERG
Soltman Levitt Flaherty Counsel of Record
& Wattles LLP ERIC BAXTER
90 E. Thousand Oaks Blvd. DIANA M. VERM
Suite 300 DANIEL D. BENSON
Thousand Oaks, CA 91360 DANIEL L. CHEN
(805) 497-7706 THE BECKET FUND FOR
RELIGIOUS LIBERTY
1919 Pennsylvania Ave. NW
Suite 400
Washington, DC 20006
(202) 955-0095
[email protected]
Counsel for Defendants-Appellees

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Fuller
Theological Seminary represents that it does not have any parent entities
and does not issue stock.
Dated: June 14, 2021
/s/ Daniel H. Blomberg

DANIEL H. BLOMBERG
THE BECKET FUND FOR
RELIGIOUS LIBERTY
Suite 400
(202) 955-0095
[email protected]
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................................................... iv
INTRODUCTION ...................................................................................... 1
JURISDICTIONAL STATEMENT ........................................................... 3
STATEMENT OF ISSUES........................................................................ 4
STATEMENT OF THE CASE .................................................................. 4
A. Title IX’s religious exemption and its enforcement

history ............................................................................................... 4
B. Fuller Theological Seminary ............................................................ 7
C. Plaintiffs’ dismissal from the School of Theology .......................... 10
D. Procedural history .......................................................................... 12
STANDARD OF REVIEW....................................................................... 14
SUMMARY OF ARGUMENT ................................................................. 15
ARGUMENT ........................................................................................... 17
I. The Seminary is at the core of Title IX’s religious

exemption. ........................................................................................... 17
A. The plain text and history of Title IX put the

Seminary within the heartland of Title IX’s
religious exemption. ....................................................................... 18
1. Applying Title IX to the Seminary here would

violate its religious tenets. ........................................................ 18
2. The Seminary is controlled by a religious

organization. .............................................................................. 21
i
3. Title IX does not require control by a separate,

external entity. .......................................................................... 25
B. The constitutional avoidance doctrine prohibits

Plaintiffs’ interpretation of Title IX. .............................................. 29
1. Plaintiffs’ interpretation raises serious

constitutional questions regarding religious
discrimination. ........................................................................... 31
2. Plaintiffs’ interpretation raises serious

constitutional concerns regarding religious
autonomy. .................................................................................. 34
3. This Court can construe Title IX’s religious

exemption to avoid these serious constitutional
problems. .................................................................................... 36
C. The Department of Education’s uniform,

longstanding interpretation of Title IX deserves
deference. ........................................................................................ 36
1. The Department’s interpretation is entitled to

Chevron deference...................................................................... 37
2. At a minimum, the Department’s interpretation

is entitled to Skidmore deference. ............................................. 43
D. RFRA requires interpreting Title IX’s religious

exemption to protect the Seminary................................................ 44
E. Title IX does not require the Seminary to apply for

an exemption. ................................................................................. 46
II. Plaintiffs’ claims violate the Religion Clauses. .................................. 48
A. Church autonomy prohibits courts from deciding

religious questions.......................................................................... 49
ii
B. Church autonomy prohibits courts from

deciding who ought to be members of religious
organizations. ................................................................................. 51
C. Church autonomy ensures that the selection and

training of ministers remains a wholly
ecclesiastical decision. .................................................................... 52
III. Plaintiffs’ claims violate the freedoms of assembly and

association. ....................................................................................... 54
IV. Plaintiffs’ procedural arguments fail. .............................................. 59
A. The district court properly considered exhibits

incorporated by reference into the complaint. ............................ 59
B. Dismissal with prejudice was proper. ......................................... 61
CONCLUSION ........................................................................................ 62
CERTIFICATE OF COMPLIANCE ........................................................ 64
CERTIFICATE OF SERVICE................................................................. 65
ADDENDUM ........................................................................................... 66
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Abrego Abrego v. Dow Chem. Co.,

443 F.3d 676 (9th Cir. 2006). .............................................................. 60
Adams v. U.S. Forest Serv.,

671 F.3d 1138 (9th Cir. 2012) ............................................................. 23
AHDC v. City of Fresno,

433 F.3d 1182 (9th Cir. 2006) ............................................................. 55
Alcazar v. Corp. of the Catholic Archbishop of Seattle,

627 F.3d 1288 (9th Cir. 2010) ....................................................... 53, 54
Ammons v. N. Pac. Union Conf. of Seventh-Day Adventists,

139 F.3d 903 (9th Cir. 1998) ............................................................... 51
Animal Legal Def. Fund v. USDA,

933 F.3d 1088 (9th Cir. 2019) ............................................................. 23
Apilado v. N. Am. Gay Amateur Athletic All.,

792 F. Supp. 2d 1151 (W.D. Wash. 2011) ........................................... 56
Askew v. Trustees of Gen. Assembly,

644 F. Supp. 2d 584 (E.D. Pa. 2009)................................................... 52
Barnhart v. Walton,
535 U.S. 212 (2002) ................................................................. 38, 39, 42
Benavidez v. County of San Diego,

993 F.3d 1134 (9th Cir. 2021) ............................................................. 14
Boden v. St. Elizabeth Med. Ctr.,

404 F. Supp. 3d 1076 (E.D. Ky. 2019) .......................................... 24, 25
Bostock v. Clayton County,

140 S. Ct. 1731 (2020) ......................................................................... 44
iv
Bouldin v. Alexander,
82 U.S. 131 (1872) ............................................................................... 51
Boy Scouts v. Dale,

530 U.S. 640 (2000) ........................................................... 55, 56, 57, 58
Business Leaders in Christ v. University of Iowa,

991 F.3d 969 (8th Cir. 2021) ............................................................... 56
Calvary Christian Sch., Inc. v. Huffstuttler,

238 S.W.3d 58 (Ark. 2006) .................................................................. 52
Capistrano Unified School District v. Wartenberg,

59 F.3d 884 (9th Cir. 1995) ................................................................. 37
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837 (1984) ..................................................................... passim
Clark v. Martinez,
543 U.S. 371 (2005) ............................................................................. 30
Col. Christian Univ. v. Weaver,

534 F.3d 1245 (10th Cir. 2008) ...................................................... 33-34
Corp. of Presiding Bishop v. Amos,

483 U.S. 327 (1987) ............................................................................. 39
CVS Health Corp. v. Vividus, LLC,

878 F.3d 703 (9th Cir. 2017) ................................................... 23, 25, 47
Daniels-Hall v. Nat’l Educ. Ass’n,

629 F.3d 992 (9th Cir. 2010) ............................................................... 60
Davis v. HSBC Bank Nev., N.A.,

691 F.3d 1152 (9th Cir. 2012) ....................................................... 14, 59
De Jonge v. Oregon,
299 U.S. 353 (1937) ............................................................................. 54
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades

Council,
485 U.S. 568 (1988) ................................................................. 29, 30, 36
v
Doe v. Kamehameha Schs.,

470 F.3d 827 (9th Cir. 2006) ............................................................... 57
E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist.,

758 F.3d 1162 (9th Cir. 2014) ....................................................... 37, 43
EEOC v. Catholic Univ. of Am.,

83 F.3d 455 (D.C. Cir. 1996) ............................................................... 53
In re Episcopal Sch. of Dallas,

556 S.W.3d 347 (Tex. App. 2017)........................................................ 52
Erlenbaugh v. United States,

409 U.S. 239 (1972) ............................................................................. 26
Espinoza v. Mont. Dep’t of Revenue,

140 S. Ct. 2246 (2020) ......................................................................... 32
Fitzgerald v. Barnstable Sch. Comm.,

555 U.S. 246 (2009) ............................................................................. 13
Flynn v. Estevez,
221 So.3d 1241 (Fla. Dist. Ct. App. 2017) .......................................... 52
Fournier v. Sebelius,
718 F.3d 1110 (9th Cir. 2013) ............................................................. 42
Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274 (1998) ............................................................................. 20
Good Samaritan Hosp. v. Shalala,

508 U.S. 402 (1993) ............................................................................. 39
Grussgott v. Milwaukee Jewish Day Sch., Inc.,

882 F.3d 655 (7th Cir. 2018) .................................................... 35, 49-50
Holt v. Hobbs,
574 U.S. 352 (2015) ............................................................................. 44
Hosanna-Tabor Evangelical Lutheran Church & Sch. v.

EEOC,
565 U.S. 171 (2012) ........................................................... 50, 52, 56, 57
vi
Hunter v. Department of Education,

No. 21-cv-474 (D. Or.) ......................................................................... 21
Hurley v. Irish-American Gay, Lesbian & Bisexual Grp.,

515 U.S. 557 (1995) ....................................................................... 56, 58
Johnson v. Lucent Techs.,

653 F.3d 1000 (9th Cir. 2011) ............................................................. 61
Jones v. United States,

526 U.S. 227 (1999) ............................................................................. 27
In re Joye,
578 F.3d 1070 (9th Cir. 2009) ............................................................. 26
Kedroff v. St. Nicholas Cathedral,

344 U.S. 94 (1952) ......................................................................... 21, 34
Korean United Presbyterian Church v. Presbytery of the Pac.,

230 Cal. App. 3d 480 (1991) ................................................................ 22
Larson v. Valente,
456 U.S. 228 (1982) ....................................................................... 32, 33
Little Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania,
140 S. Ct. 2367 (2020) ................................................................... 25, 44
Managed Pharmacy Care v. Sebelius,

716 F.3d 1235 (9th Cir. 2013) ............................................................. 38
Mansourian v. Regents of Univ. of Cal.,

602 F.3d 957 (9th Cir. 2010) ............................................................... 39
Medina v. Catholic Health Initiatives,

877 F.3d 1213 (10th Cir. 2017) ..................................................... 24, 25
Morehart v. County of Santa Barbara,

7 Cal. 4th 725 (1994) ........................................................................... 22
vii
Multnomah Legal Servs. Workers Union v. Legal Servs.

Corp.,
936 F.2d 1547 (9th Cir. 1991) ............................................................. 27
Navajo Nation v. U.S. Forest Serv.,

535 F.3d 1058 (9th Cir. 2008) ............................................................. 45
Neal v. Bd. of Trustees,

198 F.3d 763 (9th Cir. 1999) ......................................................... 30, 39
New York v. Cathedral Acad.,

434 U.S. 125 (1977) ............................................................................. 50
NLRB v. Catholic Bishop of Chi.,

440 U.S. 490 (1979) ................................................................. 30, 31, 32
Our Lady of Guadalupe Sch. v. Morrissey-Berru,

140 S. Ct. 2049 (2020) ................................................................. passim
Parrino v. FHP, Inc.,

146 F.3d 699 (9th Cir. 1998) ............................................................... 60
Paul v. Watchtower Bible & Tract Soc’y of N.Y.,

819 F.2d 875 (9th Cir. 1987) ................................................... 45, 50, 51
Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull

Mem’l Presbyterian Church,
393 U.S. 440 (1969) ........................................................................ 50-51
Reddy v. Litton Indus.,

912 F.2d 291 (9th Cir. 1990) ............................................................... 61
Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ............................................................................. 57
Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ....................................................................... 55, 58
Rodriguez v. Sony Comput. Ent. Am., LLC,

801 F.3d 1045 (9th Cir. 2015) ............................................................. 62
viii
Rotkiske v. Klemm,
140 S. Ct. 355 (2019) ........................................................................... 25
Sanzone v. Mercy Health,

954 F.3d 1031 (8th Cir. 2020) ....................................................... 24, 26
Serbian E. Orthodox Diocese v. Milivojevich,

426 U.S. 696 (1976) ..................................................................... passim
Skidmore v. Swift,
323 U.S. 134 (1944) ....................................................................... 43, 44
Smith v. United States,

508 U.S. 223 (1993) ............................................................................. 23
Spencer v. World Vision,

633 F.3d 723 (9th Cir. 2011) ............................................................... 33
Sprewell v. Golden State Warriors,

266 F.3d 979 (9th Cir. 2001) ............................................................... 60
In re St. Thomas High Sch.,

495 S.W.3d 500 (Tex. App. 2016)........................................................ 52
Tandon v. Newsom,
141 S. Ct. 1294 (2021) ......................................................................... 47
Thomas v. Collins,
323 U.S. 516 (1945) ............................................................................. 54
Thomas v. Review Bd.,

450 U.S. 707 (1981) ............................................................................. 50
Thomason v. Grace M.E. Church,

113 Cal. 558 (1896) ............................................................................. 22
TrafficSchool.com v. Edriver,
653 F.3d 820 (9th Cir. 2011) ............................................................... 14
United States v. Corinthian Colleges,

655 F.3d 984 (9th Cir. 2011) ............................................................... 61
ix
United States v. Hinkson,

585 F.3d 1247 (9th Cir. 2009) ............................................................. 14
United States v. Mead Corp.,

533 U.S. 218 (2001) ............................................................................. 43
United States v. Mongol Nation,

370 F. Supp. 3d 1090 (C.D. Cal. 2019) ............................................... 55
Univ. of Great Falls v. NLRB,

278 F.3d 1335 (D.C. Cir. 2002) ........................................................... 34
Valenzuela Gallardo v. Lynch,

818 F.3d 808 (9th Cir. 2016) ................................................... 29, 30, 36
Van Buskirk v. Cable News Network,

284 F.3d 977 (9th Cir. 2002) ............................................................... 59
Watson v. Jones,
80 U.S. 679 (1871) ............................................................................... 51
Statutes
20 U.S.C. § 1681 .............................................................................. passim
28 U.S.C. § 1291 ........................................................................................ 3
28 U.S.C. § 1331 ........................................................................................ 3
28 U.S.C. § 1367 ........................................................................................ 3
42 U.S.C. § 2000bb ............................................................................ 15, 44
Cal. Corp. Code 9210 ............................................................................... 22
Regulations
34 C.F.R. § 106.12 ................................................................... 7, 38, 46, 47
42 Fed. Reg. 15,141 (Mar. 18, 1977) ......................................................... 5
85 Fed. Reg. 30,026 (May 19, 2020) ........................................................ 46
x
85 Fed. Reg. 59,953 (Sept. 23, 2020) ............................................... passim
Other Authorities
134 Cong. Rec. H565-02, 1988 WL 1083034 (1988) ............................ 7, 28
Beeson Divinity School, Why Beeson? ..................................................... 35
Black’s Law Dictionary (5th ed. 1979) .................................................... 23
Black’s Law Dictionary (11th ed. 2019) .................................................. 23
Cambridge Dictionary ............................................................................. 23
DOE-OCR, Exemptions from Title IX: Private schools

controlled by religious organizations (any application
contrary to religious tenets exempt) ...................................................... 6
John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of

Assembly (2012) ............................................................................. 54-55
Letter from Catherine E. Lhamon, Assistant Sec’y, DOE-

OCR, to Barry H. Corey, President, Biola Univ. (Aug. 29,
2016) .................................................................................................... 42

OCR, to Barry H. Corey, President, Biola Univ. (Dec. 22,
2014) .................................................................................................... 42

OCR, to W. Robert Godfrey, President, Westminster
Seminary California (Oct. 5, 2016) ..................................................... 42
Letter from Clyde Cook, President, Biola Univ., to John E.

Palomino, Acting Reg’l Dir., Region IX, DOE-OCR
(July 30, 1985)..................................................................................... 40
Letter from Harry M. Singleton, Assistant Sec’y, DOE-OCR,

to Clyde Cook, President, Biola Univ.
(Sept. 3, 1985) ..................................................................................... 40
xi

to Joe L. Wall, President, Colo. Christian Coll.
(Oct. 25, 1985) ..................................................................................... 40

to Resach Ringel, President, Rabbinical Seminary of Belz
(Sept. 24, 1985) ................................................................................... 41
Letter from Joe L. Wall, President, Colo. Christian Coll., to

Gilbert D. Roman, Reg’l Dir., DOE-OCR (Sept. 18, 1985) ................. 40
Letter from John B. Stephenson, President, Berea Coll., to

William H. Thomas, Reg’l Dir., Region IV, DOE-OCR
(July 19, 1985)..................................................................................... 35
Letter from Norma Cantu, Assistant Sec’y, DOE-OCR, to

Paul R. Corts, President, Palm Beach Atlantic Coll.
(Sept. 14, 1994) ................................................................................... 41
Letter from Paul R. Corts, President, Palm Beach Atlantic

Coll., to Norma Cantu, Assistant Sec’y, DOE-OCR
(Aug. 18, 1994) .................................................................................... 41
Letter from William L. Smith, Acting Assistant Sec’y, DOE-

OCR, to Dr. Bence C. Miller, President, God’s Bible School
(Jan. 16, 1990)..................................................................................... 41
Letter from William Letter from Harry M. Singleton,

Assistant Sec’y, DOE-OCR, to John B. Stephenson,
President, Berea Coll. (Sept. 3, 1985) ................................................ 40
Memorandum: Policy Guidance for Resolving Religious

Exemption Requests from Harry M. Singleton, Assistant
Sec’y, DOE-OCR, to Reg’l Dirs., Regions I–X, DOE-OCR
(Feb. 19, 1985)............................................................................. passim
Memorandum: Title IX Religious Exemption Procedures and

Instructions for Investigating Complaints at Institutions
with Religious Exemptions from William L. Smith, Acting
Assistant Sec’y, DOE-OCR, to OCR Senior Staff
(Oct. 11, 1989) ....................................................................................... 6
xii
Oxford English Dictionary (3d ed. 2004) ................................................ 23
Religious Exemptions Index, DOE-OCR (May 3, 2016) ................... 28, 41
S. Rep. No. 100-64, 1987 WL 61447 (1987)................................... 7, 27, 28
xiii
INTRODUCTION
For over seventy years, Fuller Theological Seminary—and
particularly its School of Theology—has existed to “prepare men and
women for the manifold ministries of Christ and his Church.” As a
multidenominational Protestant seminary, the Seminary welcomes a
wide variety of Christian students who embrace its Statement of Faith,

the “unifying pillar” of its ministry. The Seminary is controlled by its
Board of Trustees, a group charged with ensuring the Seminary’s fidelity
to its faith. And as part of the Seminary’s religious training, the Board
has established religious standards to guide those who choose to join its
religious community.
The First Amendment protects the Seminary’s right to determine its

religious beliefs and standards, including those regarding marriage and
sexuality, free from government interference. In enacting Title IX,
Congress reinforced that freedom by including a religious exemption that
Title IX “shall not apply” where it conflicts with a religious school’s
religious tenets. With Congress’s knowledge and blessing, the
Department of Education has enforced the Title IX exemption to both
protect how schools manage their internal religious affairs and to avoid
discriminating among religious schools based on their religious affiliation
or polity. Every administration since Title IX’s enactment has recognized

that board-controlled schools of divinity like the Seminary are in the
heartland of the exemption’s protections.
1
Plaintiffs seek to change all of that. They demand a new interpretation

of Title IX’s religious exemption that conflicts with its plain language and
over forty years of uniform enforcement by the Department. They ignore

the First Amendment’s ban on church-state entanglement, thrusting civil
courts into a religious thicket that would require the judiciary to override
religious schools’ sincere religious beliefs, reject their internal judgment

about religious membership, and interfere in their decisions about whom
to prepare as religious leaders. These are things no civil court can do.
And Plaintiffs identify no court that has.
Any of these is reason enough to reject Plaintiffs’ interpretation, but
they admit one more: religious discrimination. In their view, one of the
world’s largest Protestant seminaries is not protected by Title IX’s

religious exemption simply because, unlike “numerous Catholic
seminaries,” it is an “independent institution” and not “owned” by an
“external” organization like “the Catholic Church.” That kind of
discrimination based on a religious group’s polity violates the clearest
command of the Establishment Clause: religious neutrality.
The district court should accordingly be affirmed, and for four reasons.
First, Plaintiffs’ reading of the Title IX exemption is wrong. It contradicts
the plain language of the statute and is barred by the doctrine of
constitutional avoidance, the deference due to the Department’s
longstanding interpretation, and the Religious Freedom Restoration Act.
2
Second, the district court’s ruling can be affirmed on the alternative

ground that Plaintiffs’ Title IX claim violates the Religion Clauses by
forcing courts to adjudicate religious questions, religious membership,

and religious ministerial training decisions.
Third, affirmance is also appropriate because Plaintiffs’ claim will
violate the First Amendment’s protections for assembly and association

by forcing inclusion of those who reject the Seminary’s religious beliefs.
Fourth, Plaintiffs’ grab-bag of associated arguments fails. There is no
requirement that the Seminary seek preclearance from the Department
for the exemption to apply. Their argument that this Court should
second-guess the Seminary’s religious tenets is constitutionally
impermissible and contrary to Plaintiffs’ admissions below. And their

perfunctory procedural arguments do not even attempt to pass the high
abuse-of-discretion standard they face.
This Court should affirm and hold Plaintiffs to the promise they made
when they applied for admission: to join the Seminary’s religious
community and receive the Seminary’s religious training, they would
abide by the Seminary’s religious standards.
JURISDICTIONAL STATEMENT
The district court had jurisdiction under 28 U.S.C. §§ 1331, 1367, and
this Court possesses jurisdiction under 28 U.S.C. § 1291.
3
STATEMENT OF ISSUES
1. Whether the district court correctly applied Title IX’s religious
exemption to dismiss Plaintiffs’ claims because Fuller Theological
Seminary is controlled by a religious organization (its Board of
Trustees) and applying Title IX would not be consistent with the

Board’s religious tenets.
2. Whether the district court correctly held that religious institutions do
not have to give advance notice to claim Title IX’s religious exemption.
3. Whether the district court correctly considered undisputedly
authentic documents that were heavily relied on by, but not attached
to, the First Amended Complaint.

4. Whether the district court correctly dismissed Plaintiffs’ First
Amended Complaint with prejudice.
STATEMENT OF THE CASE

A. Title IX’s religious exemption and its enforcement history
Enacted in 1972, Title IX prohibits discrimination “on the basis of sex”
in “any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). As dispositive here, Title IX includes a
religious exemption: “[T]his section shall not apply to an educational
institution which is controlled by a religious organization if the
application of this subsection would not be consistent with the religious
tenets of such organization.” Id. § 1681(a)(3).
4
The Department of Education has always understood the exemption

to apply to all religious seminaries. The first recorded enforcement
guidance issued by the Department’s Office of Civil Rights (OCR)

provides that it would normally consider an educational institution to be
“controlled by a religious organization” where “[i]t is a school or
department of divinity” or “[i]t requires its faculty, students or employees

to be members of, or otherwise espouse a personal belief in, the religion
of the organization by which it claims to be controlled.” See Assurance of
Compliance with Title IX of Education Amendments of 1972, 42 Fed. Reg.
15,141, 15,142-43 (Mar. 18, 1977). OCR further explained that a school
of divinity is defined by its mission “to prepare [students] to become
ministers of religion or to enter upon some other religious vocation, or to

prepare them to teach theological subjects.” Id. at 15,143.
In 1985, OCR reaffirmed that interpretation when it issued policy
guidance for its regional offices.1 Promulgated by Assistant Secretary
Harry Singleton, the “Singleton Memo” reiterated OCR’s interpretation
of the Title IX religious exemption and confirmed that it did not require
control by a separate, external religious organization. Id. at 25. Relying

on this guidance, OCR has now recognized exemptions for numerous
1 See Memorandum: Policy Guidance for Resolving Religious Exemption

Requests from Harry M. Singleton, Assistant Sec’y, DOE-OCR, to Reg’l
Dirs., Regions I–X, DOE-OCR (Feb. 19, 1985), available at
https://www2.ed.gov/about/offices/list/ocr/docs/singleton-memo-
19850219.pdf.
5
religious colleges and yeshivas, including dozens not controlled by

separate, external religious organizations. See infra Section I.C. The
Department still holds out the Singleton Memo as guidance on the

application of the Title IX religious exemption.2 Both the Singleton Memo
and later OCR guidance emphasized that the Department’s application
of the Title IX exemption must avoid entanglement in internal religious

matters or resolution of religious questions. Singleton Memo at 2-3
(warning against OCR enforcement actions that could be “obtrusive” into
internal religious affairs, and that “[u]nder no circumstances should OCR
appear to be interpreting” religious scriptures). 3
In 1987, Congress considered amending the religious exemption to
ensure it covered all religious schools and not just ones “controlled by”
hierarchical religious bodies. Congress carefully reviewed OCR’s
unbroken enforcement history, including by entering the substance of the
2 See DOE-OCR, Exemptions from Title IX: Private schools controlled

by religious organizations (any application contrary to religious tenets
exempt), last updated Mar. 8, 2021, available at
https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/index.html
(providing a copy of the Singleton Memo as OCR guidance).
3 See also Memorandum: Title IX Religious Exemption Procedures and
Instructions for Investigating Complaints at Institutions with Religious
Exemptions from William L. Smith, Acting Assistant Sec’y, DOE-OCR,
to OCR Senior Staff at 3 (Oct. 11, 1989), available at
https://www2.ed.gov/about/offices/list/ocr/docs/smith-memo-
19891011.pdf (“Smith Memo”) (OCR officials “should avoid any
appearance of interpreting religious tenets,” which could “create
potential conflicts under the First Amendment.”).
6
Singleton Memo in the Senate Report, and determined that the religious
exemption was already being implemented in a manner that was
sufficiently broad and thus left it unchanged. S. Rep. No. 100-64, 1987
WL 61447, at *21 (1987); 134 Cong. Rec. H565-02, 1988 WL 1083034
(1987).
Most recently, in 2020, after public notice and comment, the

Department of Education promulgated a final rule confirming OCR’s
longstanding interpretation and application of Title IX’s religious
exemption. 85 Fed. Reg. 59,953, 59,980-81 (Sept. 23, 2020);
34 C.F.R. § 106.12(c). The Department of Education expressly noted that
there is “no textual reason that would require limiting [Title IX’s
religious exemption] exclusively to schools that are controlled by external
religious organizations,” and that OCR would continue recognizing
educational institutions controlled by their religious boards or trustees.
85 Fed. Reg. at 59,956 (emphasis added).
B. Fuller Theological Seminary

Founded in 1947, Fuller Theological Seminary is one of the world’s
preeminent Protestant seminaries. From its founding to current day, its

purpose remains unchanged: to “prepare men and women for the
manifold ministries of Christ and his Church.” ER-60; ER-93; SER-94. A
California nonprofit religious corporation, the Seminary is organized

exclusively for religious purposes, ER-60, and commits that “[i]n all of its
activities, including instruction, nurture, worship, service, research, and
7
publication, [it] strives for excellence in the service of Jesus Christ.” SER-
94.
The Seminary is multidenominational and ecumenical, rooted in a

Statement of Faith which was included in its original 1951 articles of
incorporation and is “the foundation upon which the seminary is based,”
“the defining principle within the [S]eminary’s governing bylaws,” and

“the unifying pillar supporting faculty governance.” SER-95; ER-159
¶¶46-47. Consistent with this Statement of Faith, the Seminary’s faculty,
staff, and students are all expected to hold a number of foundational
Christian beliefs, such as that “Jesus Christ … is the only ground for a
person’s reconciliation with God.” SER-95. All students seeking
admission must identify their particular denominational affiliation and

the church that they attend, provide a reference from a pastor or
denominational leader, and give their religious autobiography. ER-99-
106; ER-110-115.
Part of the Seminary’s religious training of students for “Christian
service” includes developing their “moral character.” SER-64. The
Seminary’s Board of Trustees accordingly established ethical and
behavioral standards for all enrolled students and employees. SER-64,
68, 81; accord ER-117. These “community standards” are “guided by an
understanding of Scripture and a commitment to its authority regarding
all matters of Christian faith and living” and are part of the Seminary’s
“core mission, values, and identity.” SER-95; SER-64. They also reflect
8
the Seminary’s “respect [for] the moral tradition of the churches who
entrust students” to the Seminary. SER-64. The community standards
are public, listed on Fuller’s website, admissions materials, and academic

catalogues. See, e.g., id. It is “a continuing condition of enrollment” that
all prospective students agree to “continual adherence” to these
standards. SER-64, 89-90, 95; ER-103, 115.

As relevant to this case, the community standards identify the
Seminary’s sincere religious belief that marriage “is the covenant union
between one man and one woman,” that “sexual union must be reserved
for marriage,” that “all members of its community—students,
faculty, ... and trustees—[must] abstain from what [the Seminary] holds
to be un-biblical sexual practices,” and that homosexual conduct is among

practices which it considers to be “inconsistent with the teaching of
Scripture.” SER-84; ER-174 ¶191. The standards explain that God
“intended marriage to be an unconditional covenant between a woman
and a man” and that this “ideal” “must be reflected, however imperfectly,
in the lives of its faculty, administration, board, students, and staff.”
SER-77.
At the same time, while the Seminary affirms and practices this
historic orthodox Christian understanding of marriage, it expressly “does
not discriminate based on sexual orientation” as such. ER-174 ¶191.
Rather, the Seminary welcomes and serves Christian students who come
from denominations that celebrate same-sex unions. ER-159 ¶¶47-55. It
9
also provides numerous accommodations and forms of support for its

students who hold different religious views on this issue, so long as they
agree not to enter marriages or engage in conduct that violates the

Seminary’s religious commitments, embodied in its community
standards, during their religious training at the Seminary. ER-159 ¶¶48-
54, ER-174 ¶191, SER-84.
C. Plaintiffs’ dismissal from the School of Theology

Nathan Brittsan. Brittsan applied for admission to the Seminary in
August 2017, seeking a Master of Divinity from the School of Theology.

ER-108. His application stated that he was an associate pastor and
licensed minister of Grace Baptist Church, a member congregation of the
American Baptist Church USA. ER-109-11. He was pursuing ordination
from his church, which required a Master of Divinity, and sought to study
at the Seminary to “complete [his] spiritual training” and “equip [himself]
for [his] future ministry endeavors.” ER-114.
Brittsan signed the admissions form affirming his understanding that
“continual adherence” to the community standards was “a continuing
condition of enrollment.” ER-115. He also affirmed that no part of his

application contained “any misrepresentation” or “material omission,”
and that he understood that he could be “denied admission, or if already
admitted, ... dismissed” if it did. Id.
In early September, before he had registered for classes, the Seminary
realized that Brittsan might be in a same-sex marriage and emailed him
10
to arrange a time to talk. ER-126. The Seminary’s director of admissions

and an assistant dean of the School of Theology spoke with him on
September 19, addressing the community standards violation and

explaining that proceeding at the Seminary would not be possible. ER-
122, 131, 162 ¶87. Brittsan appealed this decision to Defendant Mari
Clements, who affirmed the dismissal on September 21. ER-131. Dean

Clements stated the community standards reflected “the Seminary’s
sincerely held religious beliefs,” and that Brittsan was dismissed for
violating them. Id.
Brittsan appealed this decision as well. He acknowledged his doctrinal
disagreement with the Seminary and that it was “within the bounds of
[Fuller’s] internal policies to dismiss [him],” but nonetheless requested

that the Seminary change its mind under “legal and moral principle[s].”
ER-134-35. His dismissal was upheld, and Brittsan never exercised his
right to appeal to the Fuller Board of Trustees. The Seminary reversed
any charges associated with class registration and refunded his
application fee. ER-131-32.
Joanna Maxon. Almost a year later, Maxon was also dismissed for
entering a same-sex marriage. Maxon had been admitted to the School of
Theology at the Seminary’s campus in Houston, Texas, in 2015. ER-98.
Her application said she was a member of a United Methodist Church.
ER-99. Maxon explained that she was “called into the mission of
ministry” and wanted to obtain training from the Seminary to “do more
11
both within the small group ministry of my local church, and beyond to
possibly some other ministry I am not even aware of at this time.” ER-
106. She initially enrolled in the Master of Arts in Theology and Ministry
program, with an emphasis in Recovery Ministry. ER-98.
Maxon signed the admissions form affirming her understanding that
“continual adherence” to the community standards was “a continuing

condition of enrollment.” ER-103-04. Yet in August 2018, the Seminary
became aware that Maxon had entered into a same-sex marriage
sometime after her admission. ER-157 ¶26; ER-170 ¶162; SER-61-62.
When Defendant Nicole Boymook contacted Maxon for the Seminary,
Maxon confirmed that she had spent well over a year in violation of its
community standards. SER-61. Maxon’s explanation was only that she

“forgot about the policy.” ER-138. On October 9, 2018, Maxon was
dismissed from the Seminary due to her violation of the standards. ER-
140-41. The Seminary refunded any tuition paid for courses which she
had started but was unable to complete. ER-140. The October 9 letter
informed Maxon of her right to appeal, which she did not exercise.
D. Procedural history
On November 21, 2019, Maxon filed suit against the Seminary and
Thompson. ER-192. On January 7, 2020, Plaintiffs filed a First Amended
Complaint (“FAC”), adding Brittsan as a plaintiff and Clements and

Boymook as Defendants. ER-153.
12
On February 20, 2020, the Seminary filed a motion to dismiss

Plaintiffs’ FAC and filed ten documents that were incorporated by
reference in Plaintiff’s FAC. The Seminary also requested that the

district court take judicial notice of the Seminary’s Articles of
Incorporation, SER-53, and Plaintiffs filed a statement of non-opposition
to the Seminary’s request for judicial notice. SER-51.4

Following the filing of Plaintiffs’ opposition to the Seminary’s motion
to dismiss and the Seminary’s reply, the parties filed a Joint Rule 26
Report and Discovery Plan on April 22, 2020. SER-10. There, the
Plaintiffs agreed that “[t]he core factual issues are not in dispute” and
that the “parties mainly dispute the legal significance of the facts.” SER-
11. Indeed, in later briefing on a motion to stay discovery pending

resolution of the dismissal motion, Plaintiffs quoted this language from
the Joint Rule 26 Report and confirmed that “this case is not about
whether Fuller had a different, non-discriminatory reason for expelling
Plaintiffs.” SER-7.
On August 4, 2020, the district court held a hearing on the Seminary’s
motion to dismiss. ER-22. On October 7, 2020, the district court granted

the Seminary’s motion to dismiss. ER-3. The court concluded that the
4 After Defendants pointed out that Title IX does not apply “against
school officials, teachers, [or] other individuals,” Fitzgerald v. Barnstable
Sch. Comm., 555 U.S. 246, 257 (2009), Plaintiffs agreed to dismissal of
their Title IX claims against individual defendants. SER-36 n.2.
13
Seminary qualified for Title IX’s religious exemption, dismissed

Plaintiffs’ Title IX claims with prejudice, and declined to exercise
supplemental jurisdiction over Plaintiffs’ remaining state-law claims.

ER-21.
STANDARD OF REVIEW
This Court reviews “de novo a district court’s order granting a motion
to dismiss pursuant to Rule 12(b)(6).” Davis v. HSBC Bank Nev., N.A.,
691 F.3d 1152, 1159 (9th Cir. 2012). A district court’s decision to
incorporate documents by reference is reviewed for an abuse of
discretion, id. at 1160, as is a district court’s decision dismissing a
complaint with prejudice and without leave to amend, Benavidez v.
County of San Diego, 993 F.3d 1134, 1141-42 (9th Cir. 2021). Under an
abuse-of-discretion standard, this Court “must affirm unless the district
court applied the wrong legal standard or its findings were illogical,
implausible[,] or without support in the record.” TrafficSchool.com v.
Edriver, 653 F.3d 820, 832 (9th Cir. 2011) (citing United States v.
Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)). In short, a “party
alleging an abuse of discretion faces an ‘uphill battle,’” and this Court
“give[s] significant deference to a district court’s findings.” Id. at 832 n.7.
14
SUMMARY OF ARGUMENT
The district court’s decision dismissing Plaintiffs’ claims should be
affirmed.
I. The Seminary qualifies for Title IX’s religious exemption under a
plain reading of the statute because it is a seminary “controlled by a

religious organization”—its Board of Trustees—with “religious tenets”
that would “not be consistent” with Plaintiffs’ requested application of
Title IX. 20 U.S.C. § 1681(a)(3). A ruling that a seminary must be

controlled by a separate, external religious organization would be
atextual and would violate the canon of constitutional avoidance by
forcing the Government to discriminate among religious groups and to

interfere in religious groups’ internal governance decisions. The
Department of Education’s longstanding, uniform interpretation
spanning four decades reinforces the district court’s analysis. That
interpretation is reasonable and persuasive, and therefore, this Court
must defer to it. The Religious Freedom Restoration Act further cautions
that the religious exemption must be interpreted to avoid imposing a
substantial burden on the Seminary’s religious exercise without
sufficient justification.
Further, contrary to Plaintiffs’ arguments, Title IX’s religious
exemption does not require government pre-approval based upon an
institution’s advance submission of a written statement that it is eligible
for the exemption. Rather, the statutory exemption applies automatically
15
once its written conditions are met. The Department’s rulemaking and
longstanding practice confirm this, and the First Amendment rejects
Plaintiffs’ religiously discriminatory alternative that would privilege

numerous secular Title IX exemptions over the religious exemption.
II. Plaintiffs’ claims are independently barred by the church autonomy
doctrine. Under the First Amendment’s Religious Clauses, civil courts

have no say over matters concerning “theological controversy, church
discipline, ecclesiastical government, or the conformity of [members] to
the standard of morals required of them.” Serbian E. Orthodox Diocese v.
Milivojevich, 426 U.S. 696, 713-14 (1976). Therefore, Plaintiffs cannot
hold the Seminary liable for its religious judgment as to what its religious
standards are, who can be a member of its religious community, and

whom it will train for ministry.
III. Plaintiffs’ claims are further barred by the First Amendment’s
protections for free association and assembly. As a religious group, the
Seminary is the archetype of an expressive association, and application
of Plaintiffs’ Title IX claim to punish the Seminary’s religious expression
is unconstitutional. And the government has no compelling justification
to control a Seminary’s religious training of future ministers of the faith.
IV. Plaintiffs’ procedural arguments fail. Plaintiffs do not come close
to making the difficult showing that Judge Marshall abused her
discretion by incorporating certain exhibits by reference or dismissing
their Title IX claim with prejudice. To the contrary, Judge Marshall’s
16
ruling was correct on both counts. First, incorporation by reference was

proper because Plaintiffs never objected to the authenticity of the
exhibits and substantially relied on those same documents in their FAC.

Second, the district court properly dismissed Plaintiffs’ complaint with
prejudice because they failed to specify what new facts they would have
alleged, and no amount of artful pleading could have avoided

contradicting the original pleadings or rid the Title IX claim of its
constitutional defects.
ARGUMENT
I. The Seminary is at the core of Title IX’s religious exemption.
Title IX’s exemption protects all religiously-affiliated colleges, with
seminaries like Fuller Theological Seminary being at the core. Under
Title IX’s plain text, the Seminary is exempt because it is “controlled by
a religious organization” and applying Title IX would “not be consistent”
with its “religious tenets.” 20 U.S.C. § 1681(a)(3). That decides this
appeal.
Plaintiffs’ contrary reading to require control by a separate, external
entity fails for three reasons. First, under the doctrine of constitutional
avoidance, Plaintiffs’ interpretation must be rejected because it would
force the Government to discriminate among religious groups based on

their religious polity and to entangle itself in the internal religious affairs
of schools from non-hierarchical faiths.
17
Second, the Department of Education’s unbroken, decades-long

application of Title IX across every administration since its enactment is
entitled to deference, and confirms that the religious exemption covers

Board-controlled seminaries like Fuller Theological Seminary.
Third, Title IX’s religious exemption should be interpreted in light of
RFRA, which—where possible—requires avoiding a construction that

would substantially burden the Seminary’s sincere religious exercise
without sufficient justification.
A. The plain text and history of Title IX put the Seminary

within the heartland of Title IX’s religious exemption.
Title IX states that it “shall not apply to an educational institution
which is controlled by a religious organization” if Title IX’s application
“would not be consistent” with the organization’s “religious tenets.” 20
U.S.C. § 1681(a)(3). Under a plain reading of the statute, which is
supported by the uniform history of its interpretation and enforcement,
the Seminary meets both requirements necessary to claim Title IX’s
religious exemption.
1. Applying Title IX to the Seminary here would violate its

religious tenets.
Applying Title IX to forbid the Seminary from dismissing Plaintiffs
from its educational programs “would not be consistent” with the
Seminary’s “religious tenets.” 20 U.S.C. § 1681(a)(3). Those religious

tenets—as identified in the Complaint—expressly state that the
Seminary “believes that sexual union must be reserved for marriage” and
18
that marriage “is the covenant union between one man and one woman.”
ER-174 ¶191, SER-84. The Seminary “expects members of its community
to abstain from what it holds to be unbiblical sexual practices.” ER-174

¶191.
Plaintiffs were aware of the Seminary’s religious tenets and that their
conduct violated those tenets. Maxon was admitted to the School of

Theology at the Seminary’s Houston campus in 2015. ER-98-106.
Brittsan applied for admission in August 2017. ER-108-15. During the
admission process, each signed a statement promising to abide by these
tenets and agreed that failure to keep their promise would be grounds for
dismissal. ER-103-04, 115. Further, Plaintiffs acknowledged that
entering into same-sex marriages was in violation of the Seminary’s

tenets and that the Seminary was “within the bounds of [its] internal
policies” to expel them. ER-135; see also ER-138. Once the Seminary
confirmed that Maxon and Brittsan were in violation of the community
standards, they were dismissed. ER-117-18, 131-32, 140-41.
Furthermore, there is no dispute the Seminary “expelled Plaintiffs
because it determined their same-sex marriage[s] violated the Sexual
Standards Policy, which defines marriage as ‘the covenant between one
man and one woman’ and prohibits sexual activity outside the confines
of marriage, based on its interpretation of the Bible.” ER-19-20.
Therefore, applying Title IX here to hold the Seminary liable “would not
be consistent” with its “religious tenets.”
19
Plaintiffs argue that “discovery may show” that allowing seminary

students to enter “same-sex marriages would not violate Fuller’s
religious beliefs,” and that Plaintiffs’ dismissal instead reflected “the

personal animus of a couple of administrators, rather than … Fuller’s
religious beliefs.” Br.21.
There are three fatal problems with that argument. First, if it were
true, it would foreclose Plaintiffs’ Title IX claim. Title IX does not allow
for liability against individual administrators, as Plaintiffs conceded
below. SER-36 n.2. Nor does it permit claims against an educational
institution “based on principles of respondeat superior or constructive
notice.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285 (1998).
So Title IX liability here could not be predicated on Plaintiffs’ unfounded

speculation about rogue administrators.
Second, Plaintiffs’ repeated representations below flatly contradict
this new theory on appeal. Plaintiffs told the district court that “[t]he core
factual issues are not in dispute,” that “the Parties would not need to
engage in substantial discovery about the who, what, where[,] and why
of Plaintiffs’ expulsions,” and that they “[we]re not asking the Court [to]
question [the] sincerity of Fuller’s religious beliefs regarding marriage,
sexuality, or any of their religious beliefs.” SER-7, 11; ER-32 (emphasis
added). Rather, they admitted their theory of the case was that the
Seminary “is entitled to have a sincerely held religious belief that
entering into a same-sex marriage is immoral, … but it is not entitled to
20
do that on the government’s dime.” ER-34.5

Third, even if Plaintiffs’ argument did not contradict both the scope of
Title IX liability and their own representations, it would still violate the
First Amendment. The Seminary has clearly stated, and Plaintiffs have
pled and conceded, that the reason for the dismissals was that Plaintiffs’
actions violated the Seminary’s beliefs. ER-151 ¶78, ER-170 ¶162; ER-6,
8; ER-32; ER-117-18; ER-131-32; ER-135; ER-140-41; SER-7, 11. As
discussed below, see infra Part II, no civil court can contradict a
seminary’s sincere, longstanding determination of what would “violate

[its] religious beliefs.” Br.21. Thus, the district court rightly found that it
cannot second-guess the Seminary’s beliefs, ER-20, matters which a
religious group may “decide for [itself], free from state interference.”
Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952).
2. The Seminary is controlled by a religious organization.

The district court also rightly held that the Seminary is (1) “controlled
by” (2) a “religious” (3) “organization”: its Board of Trustees.
5 Both Plaintiffs recently filed a lawsuit against the Department of

Education claiming that the entire Title IX religious exemption is
unconstitutional. Hunter v. Department of Education, No. 21-cv-474 (D.
Or.). There, just last week, Brittsan filed a declaration admitting that he
knew the Seminary’s “application and student policies … prohibited
homosexuality and defined marriage as strictly heterosexual,” and yet
signed the application anyway because he “felt [he] “complied with the
spirit of the policy” and that “Fuller should treat [his] marriage the same
way as other marriages.” Dkt. 35-7 at ¶¶ 16, 39-40 (June 7, 2021).
21
First, all parties agree (see Br.11, 14) that the Seminary is “controlled
by” its Board of Trustees. As shown in its Articles of Incorporation, the
Seminary is “organized under the Nonprofit Religious Corporation Law.”

ER-60. That law “requires that the activities and affairs of a religious
nonprofit corporation … be conducted and its corporate powers exercised
under the direction of its board.” Korean United Presbyterian Church v.

Presbytery of the Pac., 230 Cal. App. 3d 480, 503 (1991), disapproved of
on other grounds by Morehart v. County of Santa Barbara, 7 Cal. 4th 725
(1994); see also Thomason v. Grace M.E. Church, 113 Cal. 558, 560 (1896)
(the powers a religious corporation “may exercise are vested in the
trustees”); Cal. Corp. Code 9210 (the board of a nonprofit religious
corporation must “manage[]” “the activities and affairs of the

corporation”). The district court agreed and held that the Board “exerts
control over” the Seminary and is particularly “responsible for
implementing the policies at issue.” ER-18; ER-118; ER-167 ¶133.
Second, it is also undisputed that the Board is “religious.” The Board
must affirm the Seminary’s Statement of Faith, “bear concerted witness”
to it, and hold it forth as “essential to [its] ministry.” SER-95. The Board
must also adhere to the Seminary’s community standards, including the
ones at issue here. SER-84. “Trustees at the seminary see their role in
the education ministry” of the Seminary as “serving Christ,” and under
the Board of Trustee’s direction, the Seminary is “exclusively” organized
for “religious purposes.” SER-95, ER-60.
22
Third, the Seminary’s Board of Trustees is an “organization.” Title IX

does not define “organization,” and when a term is “not defined in the
statute, [courts] must give it ‘its ordinary or natural meaning.’” Adams v.

U.S. Forest Serv., 671 F.3d 1138, 1144 (9th Cir. 2012) (quoting Smith v.
United States, 508 U.S. 223, 228 (1993)). “To determine the ordinary
meaning of a word, consulting common dictionary definitions is the usual

course.” Animal Legal Def. Fund v. USDA, 933 F.3d 1088, 1093 (9th Cir.
2019) (quotation omitted). “If the language has a plain meaning or is
unambiguous, the statutory interpretation inquiry ends there.” CVS
Health Corp. v. Vividus, LLC, 878 F.3d 703, 706 (9th Cir. 2017) (citation
omitted).
Here, the term “organization” has capacious meaning. From the first
edition of Black’s Law Dictionary to include a definition of “organization”
to the most recent one, an organization exists when a group of “two or
more persons” act to further “a joint or common interest.” Organization,
Black’s Law Dictionary (5th ed. 1979); see also Organization, Black’s Law
Dictionary (11th ed. 2019) (“A group that has formed for a particular
purpose”). Other dictionaries provide the same definition. See, e.g.,
Organization, Cambridge Dictionary (“a group of people who work
together in an organized way for a shared purpose”); Organization,
Oxford English Dictionary (3d ed. 2004) (“an organized body of people
with a particular purpose”) The Seminary’s Board of Trustees is plainly
a group that works together for a common purpose: controlling the
23
Seminary to ensure it achieves its religious purpose.

Other courts have repeatedly recognized this ordinary meaning of
“organization” for purposes of federal law. For instance, in a series of

ERISA cases, the plaintiffs argued that certain defined-benefit plans
were not exempt from the requirements of ERISA because those plans
were not maintained by an “organization.” Medina v. Catholic Health

Initiatives, 877 F.3d 1213 (10th Cir. 2017); Sanzone v. Mercy Health, 954
F.3d 1031 (8th Cir. 2020); Boden v. St. Elizabeth Med. Ctr., 404 F. Supp.
3d 1076 (E.D. Ky. 2019). Specifically, the plaintiffs argued that, based on
the plain meaning of “organization,” employers had to create and
separately incorporate a wholly independent body to maintain the plan
in order for the ERISA exemption to apply.

Courts rejected this interpretation of “organization” and held that no
such separate entity was necessary. Rather, based on dictionary
definitions, the plain meaning of “organization” merely requires “a body
of persons (such as a union or a corporation) formed for a common
purpose.” Medina, 877 F.3d at 1226 (cleaned up); Sanzone, 954 F.3d at
1044 (defining “organization” as “a group of people who work together in
an organized way for a shared purpose”); accord Boden, 404 F. Supp. 3d
at 1085 (definition of “organization” simply requires “(1) a group of people
with (2) a specific purpose; nothing further is necessary for a group to be
considered an ‘organization’ under an ordinary understanding”). Thus, in
Medina, a subcommittee of a larger entity was itself an “organization” for
24
purposes of ERISA since it met the relevant dictionary definition. 877

F.3d at 1226.
So too here. As the district court held, “the ordinary meaning of the
term ‘organization’ is sufficiently broad to include” the Seminary’s Board
of Trustees. ER-18. That ends the interpretational inquiry. Vividus, 878
F.3d at 706. The Seminary comes within the religious exemption.
3. Title IX does not require control by a separate, external

entity.
Plaintiffs’ arguments to the contrary fail. Their primary error, like the
plaintiffs in the ERISA cases, is to read a whole new concept into the
statute: the exempt entity must be controlled by a wholly separate and
external religious organization. But courts are prohibited from rewriting
statutes in such a fashion. “‘It is a fundamental principle of statutory
interpretation that absent provisions cannot be supplied by the courts.’”
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140
S. Ct. 2367, 2381 (2020) (quoting Rotkiske v. Klemm, 140 S. Ct. 355, 360-
61 (2019)) (cleaned up). This is why courts have rejected an interpretation
that requires an organization to constitute a “wholly independent bod[y].”
Medina, 877 F.3d at 1226-27; Boden, 404 F. Supp. 3d at 1085 (rejecting
the interpretation “that an ‘organization’ must be a completely separate

entity”). And here, “it is not clear what the advantage of such a structure
would be, or why Congress would have required it,” Medina, 877 F.3d at
1227, especially as requiring separate, external control raises a whole
25
host of constitutional issues. Rather, because there is no reason “to

depart from the plain meaning of organization,” this Court should
“decline to do so.” Sanzone, 954 F.3d at 1044-45.

Plaintiffs’ comparison between the religious exemption in Title IX and
the religious exemption for educational institutions in Title VII is also
confused. Br.18-19. In the first place, construing two statutes on similar

subjects in pari materia “makes the most sense when the statutes were
enacted by the same legislative body at the same time.” Erlenbaugh v.
United States, 409 U.S. 239, 244 (1972). That is not the situation here.
But more importantly, the point of the doctrine is to “harmonize” related
provisions, “unless legislative history or purpose suggests material
differences.” In re Joye, 578 F.3d 1070, 1076 n.1 (9th Cir. 2009). Plaintiffs
have identified no reason—let alone a legitimate, constitutional reason—
why Congress would have departed from its Title VII approach to
discriminate under Title IX among religious denominations.
Finally, Plaintiffs’ resort to legislative history fails as well. And the
failure is particularly obvious here, as Plaintiffs do not even cite to Title
IX’s legislative history. Rather, they point to “subsequent legislative
history” in the form of two failed attempts by Congress, fifteen years after
passing Title IX, to amend Title IX’s religious exemption to read “closely
identified with” in lieu of “controlled by.” Br.19.
The Supreme Court and this Court, however, have expressly rejected
this kind of argument repeatedly, emphasizing that “subsequent
26
legislative history is a hazardous basis for inferring the intent of an

earlier Congress,” Jones v. United States, 526 U.S. 227, 238 (1999), and
“should not be taken seriously,” Multnomah Legal Servs. Workers Union

v. Legal Servs. Corp., 936 F.2d 1547, 1555 (9th Cir. 1991) (quotation
marks omitted) (collecting cases). Following these precedents, the district
court did the same. ER-19.

Even on its merits, Plaintiffs’ resort to legislative history falters.
Plaintiffs claim that Congress rejected proposals to broaden Title IX’s
religious exemption, but the amendment failed because Congress agreed
that Title IX’s “record of implementation” already protected self- and
board-controlled seminaries like Fuller Theological Seminary. S. Rep.
No. 100-64, 1987 WL 61447, at *21.

Just two years earlier, the Department of Education’s OCR had issued
the Singleton Memo, which confirmed that Title IX’s “controlled by”
requirement is normally met if any “one” of several conditions applies,
including if the institution is a “divinity school” focused on preparing
students “to become ministers,” to enter “some other religious vocation,”
or “to teach theological subjects.” Singleton Memo at 25. The Singleton
Memo confirmed that OCR had been using this definition of “controlled
by” for almost a decade, and refused to make control by a separate,
external religious organization a requirement for the religious
exemption. Id. As a result, by the late 1980’s—the time of the
amendment’s consideration—the Department of Education had
27
confirmed the exempt status of dozens of self- or board-controlled

religious institutions like Fuller Theological Seminary.6
The Senate committee recited in full the Singleton Memo’s definition

of “controlled by” and concluded that “the religious tenet exemption in
Title IX” should be left “intact.” S. Rep. No. 100-64, 1987 WL 61447, at
*21, *20. The House Report similarly suggests that Congress agreed that
an amendment was “unnecessary” because the “track record ... is clear
and unequivocal” that exemptions are “never denied.” 134 Cong. Rec.
H565-02, 1988 WL 1083034. House testimony also stated that Congress
particularly expected that the “vast bulk” of exemptions would go “to
seminaries.” Id. The legislative history indicates that Congress thus
concluded there was not “any need to broaden the religious tenet
provision.” S. Rep. No. 100-64, 1987 WL 61447 at *21.
Accordingly, even if this Court were to consider Plaintiffs’ subsequent
legislative history, it only supports the plain reading of the statute: the
Seminary clearly qualifies for Title IX’s religious exemption because it is
an educational institution controlled by its Board of Trustees, a religious
organization. That alone forecloses Plaintiffs’ appeal.
6 See Religious Exemptions Index, DOE-OCR (May 3, 2016), available

at https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/z-index-
links-list-pre-2009.html (listing confirmed institutions); see also infra
Part I.C.
28
B. The constitutional avoidance doctrine prohibits Plaintiffs’

interpretation of Title IX.
Plaintiffs’ interpretation of Title IX’s religious exemption should also
be rejected because it would unnecessarily create unprecedented and
serious First Amendment problems.
Under the canon of constitutional avoidance, “where an otherwise

acceptable construction of a statute would raise serious constitutional
problems, the Court will construe the statute to avoid such problems
unless such construction is plainly contrary to the intent of Congress.”
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485
U.S. 568, 575 (1988). 7 “This approach not only reflects the prudential
concern that constitutional issues not be needlessly confronted, but also

recognizes that Congress, like this Court, is bound by and swears an oath
to uphold the Constitution.” Id. In this way, constitutional avoidance
functions as “a tool for choosing between competing plausible
interpretations of a statutory text,” and “when deciding which of two
plausible statutory constructions to adopt,” the less constitutionally
7 In the administrative law context, the canon of constitutional

avoidance is a traditional tool of statutory interpretation and is therefore
“highly relevant at Chevron step one.” Valenzuela Gallardo v. Lynch, 818
F.3d 808, 816 (9th Cir. 2016). The Seminary therefore addresses
constitutional avoidance before demonstrating that, even if the statute’s
plain text is ambiguous (which it isn’t), the Seminary should prevail
because OCR’s interpretation of Title IX’s religious exemption is entitled
to deference. See infra Part I.C.
29
problematic option “should prevail.” Clark v. Martinez, 543 U.S. 371, 380-
81 (2005).
Courts have distilled the constitutional avoidance analysis into two

parts. First, courts must discern whether an interpretation “would give
rise to serious constitutional questions” or “present[] a significant risk
that the First Amendment will be infringed.” NLRB v. Catholic Bishop of

Chi., 440 U.S. 490, 501-02 (1979). The inquiry “is not whether [a
proffered] interpretation of Title IX is unconstitutional, but whether it
‘raises serious constitutional questions.’” Neal v. Bd. of Trustees, 198 F.3d
763, 772 (9th Cir. 1999).
Second, if an interpretation does raise serious constitutional
questions, a court must determine whether “a less constitutionally

troubling construction [is] readily available.” Valenzuela Gallardo, 818
F.3d at 818. This step requires a court to “construe the statute to avoid
such [constitutional] problems unless such construction is plainly
contrary to the intent of Congress.” DeBartolo, 485 U.S. at 575.
NLRB v. Catholic Bishop of Chicago shows how the analysis works.
There, the Supreme Court considered whether the National Labor
Relations Act gave the NLRB jurisdiction over lay faculty members at
Catholic schools. 440 U.S. at 491. Noting that the Religion Clauses could
be violated by “the very process of inquiry” necessary to resolve labor
charges against religious schools, the Court concluded that “serious First
Amendment questions” would follow from finding jurisdiction. Id. at 502,
30
504. Thus, the Court held that the statute should be interpreted narrowly
to avoid that result unless there was “clear expression of an affirmative
intention of Congress” to require it. Id. at 504. Finding no such express

intent, the Court construed the statute not to grant the NLRB
jurisdiction over lay faculty at Catholic schools. Id. at 504-07.
Here, in addition to the as-applied violations detailed in Sections II

and III below, Plaintiffs’ interpretation of Title IX alone raises two
serious constitutional questions, neither of which Congress plainly
intended, and both of which can be avoided by following OCR’s obviously
plausible (and longstanding) interpretation of Title IX. Plaintiffs’
interpretation must accordingly be rejected.
1. Plaintiffs’ interpretation raises serious constitutional

questions regarding religious discrimination.
Under Plaintiffs’ interpretation of Title IX, the Seminary is only
exempt if it is controlled by a wholly separate and external religious
organization. They acknowledge that their interpretation would
discriminate among religions, admitting that non-denominational

seminaries and colleges would generally not qualify for Title IX’s
religious exemption because they are not a part a hierarchical church,
while “numerous Catholic seminaries ... owned by the Catholic Church
and run by various dioceses.... would satisfy the control test of Title IX as
the seminaries (the educational institutions) are controlled by a religious
organization (the Catholic Church).” Br.14. That interpretation clearly
31
raises “serious constitutional questions” and “presents a significant risk

that the First Amendment will be infringed.” See Catholic Bishop, 440
U.S. at 501-02.
Both Religion Clauses forbid Plaintiffs’ religious discrimination. “The
clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another.” Larson v.

Valente, 456 U.S. 228, 244 (1982). And using religious affiliation to deny
a religious group access to public benefits unequivocally violates the Free
Exercise Clause. Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246,
2256 (2020) (invalidating state law that conditioned “eligibl[ility] for
government aid” on a school’s decision to “divorce itself from any religious
control or affiliation.” (cleaned up)); see also Larson, 456 U.S. at 245
(“This constitutional prohibition of denominational preferences is
inextricably connected with the continuing vitality of the Free Exercise
Clause.”). And the Supreme Court has recently re-emphasized this point,
warning that “non-denominational Christian schools” must be treated
equally under the Religion Clauses to avoid “privileging religious
traditions with formal organizational structures over those that are less
formal.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049,
2064-65 (2020).
Courts have repeatedly condemned this kind of religious

discrimination. In Larson, Minnesota imposed reporting requirements on
religious organizations, but exempted those religious organizations that
32
received, among other things, a certain portion of their contributions

from outside affiliated organizations. 456 U.S. at 231-32. The Supreme
Court found that the statute was unconstitutional because it “clearly

grant[ed] denominational preferences of the sort consistently and firmly
deprecated in our precedents.” Id. at 246. Specifically, the statute made
“explicit and deliberate distinctions between different religious

organizations” and unconstitutionally distinguished between “well-
established churches” and “churches which are new and lacking in a
constituency.” Id. at 246 n.23. Importantly, the Supreme Court reached
this conclusion even though the law at issue in Larson differentiated
among religious entities by objective funding criteria, not religious
doctrine. Id. at 230.

In Spencer v. World Vision, the panel majority noted that interpreting
a “statute such that it requires an organization to be a ‘church’ to qualify
for [a religious] exemption would discriminate against religious
institutions which are organized for a religious purpose and have
sincerely held religious tenets, but are not houses of worship.” 633 F.3d
723, 728 (9th Cir. 2011) (O’Scannlain, J., joined by Kleinfeld, J.,
concurring) (quotation marks omitted). That was a sufficient reason to
reject such a “constitutionally questionable interpretation.” Id. at 729.
The Tenth Circuit likewise held that a Colorado statute “necessarily
and explicitly discriminate[d] among religious institutions” by “extending
scholarships to students at some religious institutions, but not those
33
deemed too thoroughly ‘sectarian’ by government officials.” Col.

Christian Univ. v. Weaver, 534 F.3d 1245, 1258 (10th Cir. 2008). The
challenged law “exclude[d] some but not all religious institutions” such
that “students at Regis University, a Roman Catholic institution run by
the Society of Jesus, and the University of Denver, a Methodist
institution, [could] receive state scholarships, but not students at

[Colorado Christian University] or Naropa University, a Buddhist
institution.” Id. This was unconstitutional “discrimination on the basis of
religious views or religious status.” Id. (quotation marks omitted). Accord
Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1342 (D.C. Cir. 2002)
(agreeing that “discriminating between kinds of religious schools” would
“raise First Amendment concerns,” and citing Larson).

Thus, because Plaintiffs’ interpretation discriminates among religious
schools and institutions, it clearly raises a serious constitutional
question.
2. Plaintiffs’ interpretation raises serious constitutional

concerns regarding religious autonomy.
Plaintiffs’ interpretation also raises a serious constitutional question
because it would intrude on church autonomy. “The First Amendment
protects the right of religious institutions ‘to decide for themselves, free
from state interference, matters of church government as well as those of
faith and doctrine.’” Our Lady,140 S. Ct. at 2055 (quoting Kedroff, 344
U.S. 94). “[I]nternal management decisions that are essential to [an]
34
institution’s central mission” are part of a religious institution’s “sphere”

of “autonomy.” Id. at 2060. Thus, a religious body’s choice of its “internal
church government” lies at “core of ecclesiastical affairs” protected from

state interference. Milivojevich, 426 U.S. at 721.
But Plaintiffs’ preferred reading of Title IX would necessarily interfere
in church polity by demanding religious institutions formally affiliate

with a separate, external religious organization to be exempt. That would
be a severe burden on numerous religious schools. Religious institutions
like the Seminary are theologically compelled to have governance
structures that are not controlled by an outside denomination, often
precisely because they believe in training leaders and pastors from many
denominations.8
8 For example, in its Title IX exemption letter, Berea College explained

that its governance structure was theologically informed: “The founders
of Berea College were not only strongly anti-slavery and anti-caste but
were anti-sectarian and we have continued this tradition.” Letter from
John B. Stephenson, President, Berea Coll., to William H. Thomas, Reg’l
Dir., Region IV, DOE-OCR 1 (July 19, 1985),
http://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/berea-
college-request-07191985.pdf. Other religious traditions also have
similar beliefs. See Grussgott v. Milwaukee Jewish Day Sch., Inc., 882
F.3d 655, 658 (7th Cir. 2018) (Jewish school made “decision to cater
toward Conservative, Reform, and Reconstructionist Jewish families,”
rather than become an Orthodox school); Beeson Divinity School, Why
Beeson?, https://perma.cc/XMB6-UTQ6 (“Our school was founded to
represent the entirety of the orthodox Christian church. Our faculty and
student body are Protestant Christian, evangelical and
interdenominational.”).
35
At a minimum, then, Plaintiffs’ interpretation raises a very serious

constitutional question about how religious groups subject to Title IX
would remain free “to decide for themselves, free from state interference,
matters of church government.” Our Lady, 140 S. Ct. at 2055.
3. This Court can construe Title IX’s religious exemption to

avoid these serious constitutional problems.
Because Plaintiffs’ interpretation raises serious constitutional
concerns, the question is whether it can “construe the statute to avoid
such [constitutional] problems” so long as “such [a] construction is [not]
plainly contrary to the intent of Congress.” DeBartolo, 485 U.S. at 575.
Here, “a less constitutionally troubling construction is readily available”:
the interpretation available by applying the ordinary meaning of
“organization” as long enforced by OCR. See Valenzuela Gallardo, 818
F.3d at 824.
Thus, as a matter of constitutional avoidance, Plaintiffs’ novel
reading of Title IX must be rejected. Instead, this Court should affirm the
district court’s straightforward holding that the Seminary is exempt.
C. The Department of Education’s uniform, longstanding

interpretation of Title IX deserves deference.
Even were this Court to conclude that—despite its plain text and
history, and the canon of constitutional avoidance—Title IX’s religious
exemption remains ambiguous, the ambiguity must be resolved in favor
of the Department of Education’s decades-long uniform interpretation.
36
That interpretation confirms that the Seminary qualifies for Title IX’s
religious exemption.
1. The Department’s interpretation is entitled to Chevron

deference.
Where a statute speaks clearly to the precise question at issue, courts
“must give effect to the unambiguously expressed intent of Congress.”
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-
43 (1984). If, however, after exhausting traditional tools of statutory
interpretation, the statute is “ambiguous with respect to the specific
issue, the question for the court is whether the agency’s answer is based
on a permissible construction of the statute.” Id. at 843. If it is
permissible, courts must defer to the agency’s interpretation. Id.
Chevron deference “may be extended to an agency’s perspective” both
when that perspective is established through the agency’s “rulemaking
authority” and “when an agency authorized to administer a statute
interprets ... the statute by other means.” E.M. ex rel. E.M. v. Pajaro
Valley Unified Sch. Dist., 758 F.3d 1162, 1173 (9th Cir. 2014). For
instance, in Capistrano Unified School District v. Wartenberg, 59 F.3d
884 (9th Cir. 1995), this Court held that the Department of Education’s
position stated in a “letter to all chief state school officers” was “entitled
to deference in its interpretation of the statute, because the
interpretation is based on a permissible construction of the existing
statutory language.” Id. at 894.
37
Here, OCR’s interpretation of the Title IX religious exemption enjoys

the support of both formal rulemaking and other less formal ways the
agency has administered the statute.

First, after going through notice and comment in 2020, the
Department of Education promulgated a final rule in the Federal
Register adopting OCR’s longstanding interpretation and application of

Title IX’s religious exemption. 85 Fed. Reg. at 59,980-81;
34 C.F.R. § 106.12(c). The Department expressly noted that there is “no
textual reason that would require limiting [Title IX’s religious
exemption] exclusively to schools that are controlled by external religious
organizations,” and that OCR would continue recognizing educational
institutions controlled by their religious boards or trustees. 85 Fed. Reg.
at 59,956.
Second, even “[i]n the absence of formal [rulemaking],” courts also
consider other factors which may counsel deference such as, “[f]or
example,” “the related expertise of the [a]gency, the importance of the
question to administration of the statute, the complexity of that
administration, and the careful consideration the [a]gency has given the
question over a long period of time.” Managed Pharmacy Care v. Sebelius,
716 F.3d 1235, 1247 (9th Cir. 2013) (quoting Barnhart v. Walton, 535
U.S. 212, 222 (2002)). Here, “the balance tips to the side of deference.” Id.
To begin, the Department of Education’s OCR has expertise
administering Title IX. Indeed, as it is “the administrative agency
38
charged with administering Title IX,” courts must “defer properly to [its]
interpretation of Title IX.” Neal, 198 F.3d at 770; accord Mansourian v.
Regents of Univ. of Cal., 602 F.3d 957, 962 n.3 (9th Cir. 2010) (same). And
OCR’s interpretation is important to the administration of the statute,
as Title IX’s religious exemption serves important First Amendment
interests by “lifting a regulation that [would otherwise] burden[] the

exercise of religion.” Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 338
(1987).
Most importantly, courts “accord particular deference to an agency
interpretation of ‘longstanding’ duration.” Barnhart, 535 U.S. at 220;
Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993) (recognizing
to importance of “the consistency of an agency’s position” in “assessing

the weight that position is due”). The Department’s interpretation easily
meets that standard.
For more than forty years, the Department’s OCR has uniformly
maintained that seminaries and board- or trustee-controlled religious
institutions can claim Title IX’s religious exemption, regardless of
whether they are controlled by a separate, external religious entity. In
numerous enforcement actions and adjudications from 1985 to the
present, OCR has confirmed that Title IX’s religious exemption applies
to seminaries and board- or trustee-controlled religious institutions and
not only religious institutions controlled by a separate, external religious
organization. At no time has OCR limited Title IX’s religious exemption
39
solely to schools or departments of divinity controlled by an external,

independent religious organization.
For example, in 1985, OCR confirmed that Berea College qualified for
Title IX’s religious exemption because its controlling Board of Trustees
had a serious commitment to Christianity, which “adequately
establishe[d] that Berea College is controlled by a religious

organization.” 9 OCR reached that same conclusion in 1985 for many
other nonhierarchical religious colleges and universities, including
Colorado Christian University, 10 Biola University, 11 and numerous
Jewish seminaries and yeshivas that were not controlled by formally
9 Letter from Harry M. Singleton, Assistant Sec’y, DOE-OCR, to John

B. Stephenson, President, Berea Coll. 1 (Sept. 3, 1985),
http://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/berea-
college-response-09031985.pdf.
10 Letter from Joe L. Wall, President, Colo. Christian Coll., to Gilbert D.
Roman, Reg’l Dir., DOE-OCR 1 (Sept. 18, 1985),
http://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/colorado-
christian-college-request-09181985.pdf; Letter from Harry M. Singleton,
Assistant Sec’y, DOE-OCR, to Joe L. Wall, President, Colo. Christian
Coll. 1 (Oct. 25, 1985), http://www2.ed.gov/about/offices/list/ocr/docs/t9-
rel-exempt/colorado-christian-college-response-10251985.pdf.
11 Letter from Clyde Cook, President, Biola Univ., to John E. Palomino,
Acting Reg’l Dir., Region IX, DOE-OCR 1 (July 30, 1985),
http://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/biola-
university-request-07301985.pdf; Letter from Harry M. Singleton,
Assistant Sec’y, DOE-OCR, to Clyde Cook, President, Biola Univ. 1 (Sept.
3, 1985), http://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-
exempt/biola-university-response-09031985.pdf.
40
separate, external religious organizations.12

Since then, the Department of Education’s OCR has continued to
uniformly interpret Title IX’s religious exemption to apply to seminaries

and board- or trustee-controlled religious institutions. In 1990, OCR
acknowledged a religious exemption from Title IX for God’s Bible School
because “the College [was] controlled by a Board of Trustees, a non-profit
religious corporation.” 13 In 1994, OCR confirmed that Palm Beach
Atlantic College was entitled to a religious exemption from Title IX,
because it was an institution “controll[ed] by a board of trustees who are
committed to a religious faith statement.”14 And in 2014, OCR again
acknowledged that Biola University was exempt from relevant portions
12 See, e.g., Letter from Harry M. Singleton, Assistant Sec’y, DOE-OCR,

to Resach Ringel, President, Rabbinical Seminary of Belz 1-2 (Sept. 24,
1985), https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-
exempt/belzer-yeshiva-machzikei-torah-seminary-response-
09241985.pdf; see also Religious Exemptions Index, supra n.6.
13 Letter from William L. Smith, Acting Assistant Sec’y, DOE-OCR, to
Dr. Bence C. Miller, President, God’s Bible School 1 (Jan. 16, 1990),
https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/gods-bible-
school-college-and-missionary-training-home-response-01161990.pdf.
14 Letter from Paul R. Corts, President, Palm Beach Atlantic Coll., to
Norma Cantu, Assistant Sec’y, DOE-OCR 1 (Aug. 18, 1994)
https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/palm-
beach-atlantic-college-request-08181994.pdf; Letter from Norma Cantu,
Assistant Sec’y, DOE-OCR, to Paul R. Corts, President, Palm Beach
Atlantic Coll. 1 (Sept. 14, 1994)
https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/palm-
beach-atlantic-college-response-09141994.pdf.
41
of Title IX because the institution was “a private Christian evangelical

institution” and was “governed and controlled by its Board of Trustees
pursuant to the statement of mission and purpose and Articles of Faith

contained in its Articles of Incorporation.” 15 That same conclusion
followed for Westminster Seminary California, as it was both a “school of
divinity” and “governed by a [religious] Board of Trustees.” 16

This uniform forty-year enforcement history is similar to the duration
and consistency of other agency interpretations recognized as deserving
Chevron deference. Barnhart, 535 U.S. at 220 (forty-five years); Fournier
v. Sebelius, 718 F.3d 1110, 1121 (9th Cir. 2013) (forty-six years).
In light of these factors, “Chevron provides the appropriate legal lens
through which to view the legality” of OCR’s interpretation. Fournier,

718 F.3d at 1121-22 (quotation marks omitted). Under Chevron, courts
must uphold agency interpretations if they are reasonable. As shown
15 Letter from Catherine E. Lhamon, Assistant Sec’y, DOE-OCR, to

Barry H. Corey, President, Biola Univ. 1 (Aug. 29, 2016)
https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/biola-
university-response-08292016.pdf; see also Letter from Catherine E.
Lhamon, Assistant Sec’y, DOE-OCR, to Barry H. Corey, President, Biola
Univ. 1-2 (Dec. 22, 2014)
https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/biola-
university-response-12222014.pdf (reiterating the three-part analysis
from HEW Form 639A and the Singleton Memo).
16Letter from Catherine E. Lhamon, Assistant Sec’y, DOE-OCR, to W.
Robert Godfrey, President, Westminster Seminary California 1 (Oct. 5,
2016) https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-
exempt/westminster-seminary-california-response-10052016.pdf.
42
above, OCR’s interpretation easily clears that low threshold.
2. At a minimum, the Department’s interpretation is

entitled to Skidmore deference.
“[E]ven when an agency’s decision does not qualify for Chevron
deference, ‘an agency’s interpretation may merit some deference

whatever its form, given the specialized experience and broader
investigations and information’ available to the agency, and given the
value of uniformity in its administrative and judicial understandings of
what a national law requires.” E.M., 758 F.3d at 1174 (quoting United
States v. Mead Corp., 533 U.S. 218, 234 (2001)). In those circumstances,
under Skidmore v. Swift, courts look to “the thoroughness evident in [the
agency’s] consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give it
power to persuade.” 323 U.S. 134, 140 (1944).
Here, the reasons given for the Chevron analysis show that OCR’s
interpretation is at least entitled to Skidmore deference. Indeed, as this
Court has previously held, it need not determine whether an agency’s
interpretation is entitled to Chevron deference, where, as here, even
under Skidmore, OCR’s persuasive interpretation of Title IX deserves
deference. E.M., 758 F.3d at 1174; see also Mead Corp., 533 U.S. at 235.
****
Accordingly, this Court should defer to OCR’s longstanding and
consistent interpretation of Title IX’s religious exemption. No matter the
43
route—Chevron or Skidmore—the end conclusion is identical: Fuller

Theological Seminary qualifies for Title IX’s religious exemption.
D. RFRA requires interpreting Title IX’s religious exemption

to protect the Seminary.
The Religious Freedom Restoration Act (“RFRA”) guides statutory
interpretation of other federal laws. See Bostock v. Clayton County, 140
S. Ct. 1731, 1754 (2020) (“RFRA operates as a kind of super statute,
displacing the normal operation of other federal laws”); Little Sisters of
the Poor, 140 S. Ct. 2384 at (2020) (agency “would certainly be
susceptible” to claims of arbitrary and capricious rulemaking if it did not
consider RFRA). It provides “very broad protection for religious liberty”
by exempting religious objectors from federal laws that substantially
burden the exercise of their religious beliefs. Holt v. Hobbs, 574 U.S. 352,
356 (2015). Under RFRA, such substantial burdens are permissible only
if they are the “least restrictive means” of furthering a “compelling
governmental interest.” 42 U.S.C. § 2000bb-1(b).
RFRA “applies to all federal law, and the implementation of that law,”
including Title IX. 42 U.S.C. § 2000bb-3(a). As such, any interpretation
of Title IX must take into account RFRA’s requirements and thus must
avoid using the power of the government to substantially burden the

Seminary’s exercise of religion.
A “substantial burden” is established either when religious groups are
“coerced to act contrary to their religious beliefs by the threat of
44
civil ... sanctions” or “forced to choose between following the tenets of

their religion and receiving a governmental benefit.” Navajo Nation v.
U.S. Forest Serv., 535 F.3d 1058, 1069-70 (9th Cir. 2008) (en banc). Here,
Plaintiffs’ theory of Title IX would make enforcing the Seminary’s
community standards an “unlawful act” subject to open-ended civil
sanctions, including millions of dollars in claimed damages, all of which

“would directly restrict the free exercise of the [Seminary’s] religious
faith.” Paul v. Watchtower Bible & Tract Soc’y of N.Y., 819 F.2d 875, 881
(9th Cir. 1987). And it would force the Seminary to either give up access
to students relying on federal aid—thus imposing the burden of cutting
them off from co-religionists seeking theological training—or give up
their religious practices. If this Court grants Plaintiffs’ claim, “the

pressure to forgo th[ose] practice[s] would be unmistakable” and would
thus constitute “a substantial burden.” Id. at 881-82 & n.6 (cleaned up).
Nor can Plaintiffs justify that burden. There is no compelling
government interest in controlling how a seminary trains its students for
ministry. Thus, to avoid conflict with RFRA, the Title IX religious
exemption must be interpreted to include the Seminary’s practice of its
religion here.
45
E. Title IX does not require the Seminary to apply for an

exemption.
Plaintiffs argue (at Br.19-21) that the Seminary cannot assert the
religious exemption because it did not apply to the Department for the
exemption in advance. Not so.
The plain language of the statue refutes Plaintiffs’ proposed
administrative-preclearance requirement. If a religious school meets the

statutory requirements for Title IX’s religious exemption, the statutory
language says that Title IX “shall not apply.” 20 U.S.C. § 1681(a). As the
district court explained, this language “automatically exempts … any
educational institution that meets the statutory criteria.” ER-15. It “does
not condition an educational institution’s liability under [Title IX] on its
submission of a written claim for exemption.” Id.

The Department’s current regulations, which Plaintiffs conspicuously
fail to address, confirm this common-sense reading. While “[a]n
educational institution that seeks assurance of the exemption … may do
so” by submitting a statement to the Department, “[a]n institution is not
required to seek assurance from [the Department] in order to assert such
an exemption.” 85 Fed. Reg. 30,026, 30,475 (May 19, 2020); 34
C.F.R. § 106.12(b) (emphasis added).
Ignoring both the statute and controlling regulation, Plaintiffs instead
quote former regulatory language stating that “[a]n educational

institution which wishes to claim the exemption … shall do so by
submitting in writing to the Assistant Secretary a
46
statement … identifying the provisions of this part which conflict with a

specific tenet of the religious organization.” Br.19-20 (quoting 34 C.F.R.
§ 106.12(b), amended by 85 Fed. Reg. at 30,475). But even this former

regulation did “not require that a religious institution submit a written
claim of exemption.” Smith Memo at 1. Rather, OCR has long explained
that this written statement is simply an optional “request for assurance”

that the government will recognize a school’s exemption. Id. That is
precisely what the new regulation reaffirmed.
Finally, if Plaintiff’s reading of the former regulation were correct, the
regulation would be invalid, for two reasons. First, an implementing
regulation cannot conflict with its unambiguous authorizing statute. See
Vividus, 878 F.3d at 706; ER-15. Where the statute says that Title IX
“shall not apply,” 20 U.S.C. § 1681(a), a regulation can’t say differently.
Second, imposing a discriminatory requirement for religious schools to
seek preclearance of their religious beliefs would violate the Free
Exercise Clause. “[G]overnment regulations are not neutral and
generally applicable, and therefore trigger strict scrutiny under the Free
Exercise Clause, whenever they treat any comparable secular activity
more favorably than religious exercise.” Tandon v. Newsom, 141 S. Ct.
1294, 1296 (2021). As relevant here, Title IX provides a number of broad
secular exemptions for, among other things, all private undergraduate
admissions decisions; longtime single-sex public educational institutions;
social fraternities and sororities; and voluntary youth service
47
organizations. See 20 U.S.C. § 1681(a). None of these require

preclearance. Thus, there can be no requirement that religious schools
must alone play “Mother, may I?” before practicing their faith.
II. Plaintiffs’ claims violate the Religion Clauses.

The Religion Clauses of the First Amendment forbid civil courts from
becoming “entangled in essentially religious controversies” over matters
concerning “theological controversy, church discipline, ecclesiastical
government, or the conformity of [members] to the standard of morals
required of them.” Milivojevich, 426 U.S. at 709, 713-14. This “principle

of church autonomy” thus guarantees religious groups “independence in
matters of faith and doctrine and in closely linked matters of internal
government.” Our Lady, 140 S. Ct. at 2061. The Religion Clauses speak
with one voice here, since “[s]tate interference in that sphere would
obviously violate the free exercise of religion, and any attempt by
government to dictate or even to influence such matters would constitute
one of the central attributes of an establishment of religion.” Id. at 2060.
Here, Plaintiffs’ claims are barred in three ways by the church
autonomy doctrine: they ask civil courts to decide religious questions; to

override a religious community’s judgment of who can be members; and
to entangle themselves in the strictly ecclesiastical decision of whom the
Seminary will train for religious ministry.
48
A. Church autonomy prohibits courts from deciding religious

questions.
At the core of Plaintiffs’ Title IX claim is their request that this Court
decide whether entering a same-sex marriage violates the Seminary’s
religious community standards. That’s a religious question this Court
cannot resolve.
In its community standards, the Seminary has explained that it

sincerely believes that “the teaching of Scripture” show that God
“intended marriage to be an unconditional covenant between a woman
and a man,” that “sexual union must be reserved for marriage,” and that
“all members of its community—students, faculty, … and trustees—
[must] abstain from what [Fuller] holds to be unbiblical sexual practices.”
SER-76, SER-84; ER-174 ¶191; see also ER-131 (relying on the standards
for dismissal, and explaining they reflect “the Seminary’s sincerely held
religious beliefs”). The Plaintiffs disagree with these beliefs, but
impermissibly want this Court to replace the Seminary’s views with their
own to find that “their civil same-sex marriages [do] not violate Fuller’s
religious beliefs.” Br.21; id. at 12 (arguing their actions are not
“inconsistent with Fuller’s religious tenets”). That this Court cannot do.
Nor can Plaintiffs evade black-letter law by complaining that the
Seminary is too accommodating to LGBT students to sincerely hold its
beliefs. Br.4-5. Courts have repeatedly rejected that kind of argument,

refusing to use a “school’s promotion of inclusion as a weapon to challenge
the sincerity of its religious beliefs.” Grussgott, 882 F.3d at 658 (collecting
49
cases). Any other rule would create a perverse incentive for religious
schools to be less inclusive, and would counter the missions of many
schools to serve a variety of communities.

Under the Religion Clauses, courts cannot “deprive [the Seminary] of
the right of construing [its] own church laws,” Milivojevich, 426 U.S. at
714, nor are they “arbiters of Scriptural interpretation” who can

determine that the Seminary’s interpretation of its own beliefs is
“unreasonable,” Thomas v. Review Bd., 450 U.S. 707, 715-16 (1981). See
also Paul, 819 F.2d at 878 n.1 (“civil courts may not redetermine the
correctness of an interpretation of canonical text or some decision
relating to government of the religious polity”). Allowing Plaintiffs to
contest the “religious meaning” of the Seminary’s beliefs would “touch[]

the very core of the constitutional guarantee against religious
establishment.” New York v. Cathedral Acad., 434 U.S. 125, 133 (1977).
Indeed, “the mere adjudication of such questions would pose grave

problems for religious autonomy,” as civil courts would have to “sit[] in
ultimate judgment of what the accused church really believes.” Hosanna-
Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 205-
06 (2012) (Alito, J., joined by Kagan, J., concurring); Presbyterian Church
in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S.
440, 449 (1969) (“First Amendment values are plainly jeopardized

when ... litigation is made to turn on the resolution by civil courts of
50
controversies over religious doctrine and practice.”). Plaintiffs’ Title IX

claim must be dismissed on this basis alone.
B. Church autonomy prohibits courts from deciding who

ought to be members of religious organizations.
Plaintiffs’ Title IX claim is also barred because the church autonomy
doctrine protects religious organizations’ membership decisions. Courts
have long ruled that they “cannot decide who ought to be members of the
church, nor whether the excommunicated have been regularly or
irregularly cut off.” Bouldin v. Alexander, 82 U.S. 131, 139-40 (1872).
This reflects our nation’s “broad and sound view of the relations of church
and state under our system of laws,” and prevents the “total subversion
of … religious bodies” that would arise if former members “could appeal
to the secular courts” to reverse their dismissal. Watson v. Jones, 80 U.S.
679, 727, 729 (1871). Religious groups thus have autonomy to decide
whether a member failed to meet “the standard of morals required of
them.” Milivojevich, 426 U.S. at 714. As this Court has recognized,
religious bodies must be “afforded great latitude” in making those
determinations, and cannot entertain claims of former members “for
having been ‘wrongfully’ disfellowshipped.” Paul, 819 F.2d at 883 & 878
n.1; see also Ammons v. N. Pac. Union Conf. of Seventh-Day Adventists,

139 F.3d 903 (9th Cir. 1998) (unpublished) (“Disputes regarding matters
of church discipline are not the proper subject of a civil court inquiry.”).
51
Where the issue has arisen, courts have repeatedly recognized that
this rule applies to a “decision to expel a student” from a religious school,
since it “is akin to a church’s decision to remove or discipline one of its

members” and “necessarily involves doctrinal criteria, and attempting to
disentangle the doctrinal from the secular in this context is precisely
what [Supreme Court precedent] prohibits.” Askew v. Trustees of Gen.

Assembly, 644 F. Supp. 2d 584, 594 n.8 (E.D. Pa. 2009), aff’d 684 F.3d
413 (3d Cir. 2012).17 So too here.
C. Church autonomy ensures that the selection and training of

ministers remains a wholly ecclesiastical decision.
Finally, the “principle of church autonomy” also establishes the
“constitutional foundation” of the ministerial exception doctrine. Our
Lady, 140 S.Ct. at 2061. This doctrine protects religious groups’ right to
“select and control who will minister to the faithful,” ensuring that
authority over “choosing who will preach their beliefs, teach their faith,
and carry out their mission” remains “strictly ecclesiastical.” Hosanna-
Tabor, 565 U.S. at 194-96.
17 See also Calvary Christian Sch., Inc. v. Huffstuttler, 238 S.W.3d 58,
66-67 (Ark. 2006) (dismissing claims over religious school’s dismissal of
student); Flynn v. Estevez, 221 So.3d 1241, 1251 (Fla. Dist. Ct. App. 2017)
(dismissing admissions claim against school because the “Church’s
governance of its parochial schools is inherently religious”); In re
Episcopal Sch. of Dallas, 556 S.W.3d 347, 357 (Tex. App. 2017) (Religion
Clauses bar claims “regarding whether [a student] should be a member
of the school community”); In re St. Thomas High Sch., 495 S.W.3d 500,
512 & n.1 (Tex. App. 2016) (same; collecting cases).
52
As relevant here, the ministerial exception covers seminary students

training for the ministry. “First Amendment considerations relevant to
an ordained minister apply equally to a person who, though not yet

ordained, has entered into a church-recognized seminary program to
become a minister.” Alcazar v. Corp. of the Catholic Archbishop of Seattle,
627 F.3d 1288, 1292 (9th Cir. 2010) (en banc) (affirming grant of
judgment on the pleadings). “The principle of allowing the church to
choose its representatives using whatever criteria it deems relevant
necessarily applies not only to those persons who already are ordained
ministers, but also to those persons who are actively in the process of
becoming ordained ministers.” Id. (cleaned up); see also EEOC v. Catholic
Univ. of Am., 83 F.3d 455, 463 (D.C. Cir. 1996) (“[T]he autonomy of a
religious body in the selection and training of its own clergy [is] of critical
importance.”). Indeed, preventing government from exercising control
over religious training was one of the aims of the Religion Clauses. Our
Lady, 140 S. Ct. at 2061 (noting “the founding generation sought to
prevent a repetition of” abusive English practices, including
governmental “restrictions on education” that controlled who could
“attend … universities”).
That rule applies here. The Seminary’s mission is to “prepare men and
women for the manifold ministries of Christ and his Church.” ER-60.
That’s particularly true of the School of Theology, where both Plaintiffs
enrolled. And religious ministerial training was the express purpose that
53
both Plaintiffs came to the Seminary. Brittsan sought a Master of

Divinity to obtain ordination in his church, “complete [his] spiritual
training,” and “equip [him] for [his] future ministry endeavors.” ER-114;
ER-154 ¶3. Maxon likewise enrolled in the School of Theology with the
purpose of preparing for ministry. ER-105-06; ER-157 ¶29. On those
facts, the Seminary has the constitutional right to choose who to train for
ministry “using whatever criteria it deems relevant,” including continued
adherence to its community standards. Alcazar, 627 F.3d at 1292.
****
If “independence in matters of faith and doctrine” means anything at
all, Our Lady, 140 S. Ct. at 2061, it must mean courts cannot entangle
themselves in resolving claims over whether the Seminary wrongly

applied its own religious doctrine, determined its own membership, and
selected future ministers of the faith.
III. Plaintiffs’ claims violate the freedoms of assembly and

association.
Plaintiffs’ claims are also barred by the First Amendment rights to
freedom of assembly and expressive association. The freedom of assembly
is “a right cognate to those of free speech and free press and is equally
fundamental.” De Jonge v. Oregon, 299 U.S. 353, 364 (1937). It protects

the right of individuals to gather for “abstract discussion, unrelated to
action,” as well as to “persuade to action.” Thomas v. Collins, 323 U.S.
516, 537 (1945). Even before individuals “are capable of articulating their
54
reasons for ... their way of life,” the freedom of assembly protects their
right to “demonstrat[e] (intentionally or not) its merits”; it protects the
right to “practi[ce] in order to preach.” John D. Inazu, Liberty’s Refuge:

The Forgotten Freedom of Assembly 159 (2012) (internal quotation marks
and citation omitted).
Indeed, “[a]n individual’s freedom to speak [and] to worship ... could

not be vigorously protected from interference by the State unless a
correlative freedom to engage in group effort toward those ends were not
also guaranteed.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). This
freedom of assembly or association “plainly presupposes a freedom not to
associate,” and thus protects against laws that “force[ a] group to accept
members it does not desire.” Id. at 623. Protecting this “right is crucial in
preventing the majority from imposing its views on groups that would
rather express other, perhaps unpopular, ideas.” United States v. Mongol
Nation, 370 F. Supp. 3d 1090, 1101 (C.D. Cal. 2019) (quoting Boy Scouts
v. Dale, 530 U.S. 640, 647-48 (2000)). Thus, the “exercise of these
constitutional rights is not deprived of protection if the exercise is not
politically correct and even if it is discriminatory against others.” AHDC

v. City of Fresno, 433 F.3d 1182, 1198 (9th Cir. 2006).
This freedom to “associate with others in pursuit of a wide variety of
political, social, economic, educational, religious, and cultural ends,”

Roberts, 468 U.S. at 622, is thus alone sufficient to defeat Plaintiffs’
challenge to the Seminary’s decisions in assembling a community of
55
believers whom it seeks to form in its faith perspective. See Our Lady,
140 S. Ct. at 2055 (“The religious education and formation of students is
the very reason for the existence of most private religious schools[.]”).
The freedom of assembly takes on additional strength when
undertaken for expressive purposes. As relevant here, the First
Amendment protects the rights of groups to exclude individuals who

undermine the groups’ message on sexuality or marriage. Dale, 530 U.S.
at 659; Hurley v. Irish-American Gay, Lesbian & Bisexual Grp., 515 U.S.
557, 581 (1995). Thus, for instance, courts have found that a gay softball
league can exclude straight players, Apilado v. N. Am. Gay Amateur
Athletic All., 792 F. Supp. 2d 1151, 1161-62 (W.D. Wash. 2011), and that
religious groups can exclude individuals who reject their beliefs on same-
sex marriage, Business Leaders in Christ v. University of Iowa, 991 F.3d
969 (8th Cir. 2021). These rights also protect a seminary’s decisions
regarding its religious training. Hosanna-Tabor, 565 U.S. at 189 (noting

EEOC concession that it would violate “the constitutional right to
freedom of association” to use federal nondiscrimination law “to compel
the ordination of women ... by an Orthodox Jewish seminary”). To decide

if the right of expressive association is implicated, courts must determine
whether the group “engage[s] in some form of expression, whether it be
public or private,” and if the law at issue “affects in a significant way the
[organization’s] ability to advocate public or private viewpoints.” Dale,
530 U.S. at 648-50.
56
First, the Seminary engages in “some form of expression.” It exists

solely to provide “religious learning to prepare men and women for the
manifold ministries of Christ and his Church.” ER-60; accord SER-58.

Moreover, its community standards were specifically delineated “to speak
clearly” and avoid “confusion” about its moral commitments and to
expressively “model” its faith for society. SER-64, 76.

These associational interests are near their peak here because this
case concerns both religious and academic associational interests. The
First Amendment “gives special solicitude to the rights of religious

organizations,” Hosanna-Tabor, 565 U.S. at 189, in part because their
“very existence is dedicated to the collective expression and propagation
of shared religious ideals,” making them “the archetype of associations

formed for expressive purposes,” id. at 200-01 (Alito, J., joined by Kagan,
J., concurring). The First Amendment also accords institutions of higher
education significant “educational autonomy,” Doe v. Kamehameha

Schs., 470 F.3d 827, 841 (9th Cir. 2006) (en banc), including in its
“selection of its student body,” Regents of Univ. of Cal. v. Bakke, 438 U.S.
265, 312 (1978) (the “essential freedoms of a university” include

“determin[ing] for itself ... who may be admitted to study” (cleaned up)).
Second, punishing the Seminary for holding certain religious beliefs
about marriage and sexuality would “significantly affect the [Seminary’s]

ability to advocate public or private viewpoints.” Dale, 530 U.S. at 650.
Courts must “give deference to an association’s view of what would
57
impair its expression.” Id. at 653. In Dale, the Supreme Court explained
that the “deference” owed by courts meant that it “need not inquire
further” than the Boy Scout’s “assert[ion]” regarding the nature of its
expression, and that impairment was a logical result of being forced to
accept a leader who was open and public about his disagreement. Id. at
651, 659; see also id. at 651-52 (confirming the assertion via public
statements the defendant had made). And here, the harm is plain:
punishing the Seminary undermines its ability to maintain its long-
established, well-known religious standards for ministry training. That
is precisely the kind of “interfere[nce] with the internal organization or
affairs of the group” forbidden by the right of expressive association. See
Roberts, 468 U.S. at 623.

Application of this analysis is straightforward here, not least because
Plaintiffs conceded both elements of the Seminary’s freedom of
association defense below, admitting the Seminary “is an expressive
association with associational rights,” and its expression would be
harmed if Plaintiffs’ claims are enforced. SER-40 And while Plaintiffs
didn’t dispute their ensuing strict scrutiny burden, they provided no
argument that their claims could provide a more compelling basis for
restricting First Amendment rights than the state public
accommodations laws found wanting in Dale and Hurley.
58
IV. Plaintiffs’ procedural arguments fail.

Unable to prevail on the merits, Plaintiffs retreat to a series of
procedural arguments. None is persuasive.
A. The district court properly considered exhibits

incorporated by reference into the complaint.
Plaintiffs challenge the Seminary’s submission of Exhibits 2 through
10 with its motion to dismiss.18 They are wrong. The district court was
well within its discretion in accepting and considering these exhibits.

The court properly considered the exhibits because they were
effectively incorporated into the complaint. In ruling on a 12(b)(6) motion,
the district court may “look beyond the pleadings” “to consider documents
that were referenced extensively in the complaint and were accepted by
all parties as authentic.” Van Buskirk v. Cable News Network, 284 F.3d
977, 980 (9th Cir. 2002). As the Seminary demonstrated below, and the
district court found, Plaintiffs’ complaint “heavily relies on Exhibits 2
through 10.” ER-10; ER-55-56 (detailing the 120 paragraphs in the FAC
that quote or otherwise rely on the exhibits). Plaintiffs do not contest this.
Neither do they contest the documents’ authenticity. Thus, they have
“waived this objection on appeal.” Davis, 691 F.3d at 1161.
Apparently recognizing these fatal flaws, Plaintiffs are forced to

concede that “the district court may have properly incorporated Fuller’s
proposed documents by reference.” Br.23. So Plaintiffs pivot and instead
18Plaintiffs admit that Exhibit 1 was admitted properly. SER-51-52;

Br.6 n.1.
59
argue that the court was nonetheless barred from using the properly
incorporated documents “to decide questions of fact in favor of Fuller.” Id.
This version of the argument fares no better.

First, Plaintiffs told the district court at least three times that the
Seminary’s religious beliefs and the reason Plaintiffs were dismissed
were not in dispute. SER-11 (“The core factual issues are not in dispute
at this stage of the litigation: The parties agree that Fuller dismissed
Plaintiffs because of their same-sex marriages. The parties mainly
dispute the legal significance of the facts.”); SER-7 (similar); ER-32
(“[W]e are not asking the Court the question of sincerity of Fuller’s
religious beliefs regarding marriage, sexuality, or any of their religious
beliefs.”).
Second, courts do not accept as true a plaintiff’s “allegations that
contradict matters properly subject to judicial notice or by exhibit.”
Sprewell v. Golden State Warriors, 266 F.3d 979, 998 (9th Cir.), opinion
amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001); accord
Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).
Indeed, the incorporation-by-reference rule exists precisely for this
purpose: to prevent plaintiffs from dodging proper dismissal “by
deliberately omitting references to documents upon which their claims
are based.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998),
superseded by statute on other grounds as recognized in Abrego Abrego v.
Dow Chem. Co., 443 F.3d 676, 681-82 (9th Cir. 2006).
60
And third, as explained above, second-guessing the Seminary’s

understanding and application of its own religious beliefs would violate
the First Amendment and unconstitutionally entangle this Court in a

“religious thicket.” Milivojevich, 426 U.S. at 719.
B. Dismissal with prejudice was proper.

Plaintiffs assert in passing that the district court abused its discretion
by dismissing their Title IX claims with prejudice without giving them
leave to amend the complaint. Br.21-22. But to obtain leave to amend, a
plaintiff must show that the “deficiencies can be cured with additional
allegations that are ‘consistent with the challenged pleading’ and that do
not contradict the allegations in the original complaint.” United States v.
Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (quoting Reddy v.
Litton Indus., 912 F.2d 291, 296-97 (9th Cir. 1990)). Here, the district
court correctly dismissed Plaintiffs’ Title IX claims with prejudice
because any amendment to those claims would have been futile.
As an initial matter, Plaintiffs never asked the district court for leave
to amend. Nor have they explained to this Court what additional facts
they could allege to overcome the clear application of Title IX’s religious
exemption. That failure to “alert [either] court as to what new facts [they]
would have alleged” is itself a sufficient reason to reject Plaintiffs’
conclusory assertion of error. Johnson v. Lucent Techs., 653 F.3d 1000,

1012 (9th Cir. 2011), as amended (Aug. 19, 2011).
61
In any event, amendment to take the Seminary outside the protections

of Title IX’s religious exemption would contradict the existing complaint
and Plaintiffs’ admissions. Plaintiffs would have to disavow their

repeated admissions that the Seminary is “controlled by” its Board of
Trustees, Br.11, 14, their admissions quoting the Seminary’s Community
Standards, ER-174 ¶191, and their admissions regarding the reason for
their dismissal. ER-135; ER-138; SER-7. And given these admissions, no
amount of “artful[ ] pleading,” Rodriguez v. Sony Comput. Ent. Am., LLC,
801 F.3d 1045, 1054 (9th Cir. 2015), can change the fact that the
Seminary is protected by Title IX’s religious exemption. Nor would
(another) amended complaint do anything to avoid the myriad First
Amendment problems inherent in asking a secular court to order a
seminary to train someone for the ministry contrary to its religious
beliefs. Amendment would thus have been futile, and the district court
was well within its discretion to dismiss the claim with prejudice.
CONCLUSION
The judgment of the district court should be affirmed.
62
Respectfully submitted,
KEVIN S. WATTLES DANIEL H. BLOMBERG
Soltman Levitt Flaherty Counsel of Record
& Wattles LLP ERIC BAXTER
90 E. Thousand Oaks Blvd. DIANA M. VERM
Suite 300 DANIEL D. BENSON
Thousand Oaks, CA 91360 DANIEL L. CHEN
(805) 497-7706 THE BECKET FUND FOR
RELIGIOUS LIBERTY
Suite 400
(202) 955-0095
[email protected]
63
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the length limits permitted by
Ninth Circuit Rule 32-1. The brief is 13,907 words, excluding the portions
exempted by Fed. R. App. P. 32(f). The brief’s type size and type face
comply with Fed. R. App. P. 32(a)(5) and (6).

Daniel H. Blomberg
Dated: June 14, 2021
64
CERTIFICATE OF SERVICE
I hereby certify that on June 14, 2021, the foregoing brief was filed
electronically with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit through the Court’s CM/ECF system. I
certify that all participants in the case who are registered CM/ECF users
will be served by the appellate CM/ECF system.

Daniel H. Blomberg
65
ADDENDUM
Pertinent Constitutional Provisions and Statutes
66
TABLE OF CONTENTS
Page
First Amendment .................................................................................... 68
20 U.S.C. § 1681 ...................................................................................... 69
42 U.S.C. §2000bb et seq. ........................................................................ 74
34 C.F.R. § 106.12 ................................................................................... 78
Cal. Corp. 9210 ........................................................................................ 81
67
First Amendment to the United States Constitution

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
68
Title IX of the Education Amendments of 1972,

20 U.S.C. § 1681 et seq.
(a) Prohibition against discrimination; exceptions
No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal financial
assistance, except that:
(1) Classes of educational institutions subject to prohibition
in regard to admissions to educational institutions, this section shall
apply only to institutions of vocational education, professional
education, and graduate higher education, and to public institutions
of undergraduate higher education;
(2) Educational institutions commencing planned change in
admissions
in regard to admissions to educational institutions, this section shall
not apply (A) for one year from June 23, 1972, nor for six years after
June 23, 1972, in the case of an educational institution which has
begun the process of changing from being an institution which
admits only students of one sex to being an institution which admits

students of both sexes, but only if it is carrying out a plan for such a
change which is approved by the Secretary of Education or (B) for
seven years from the date an educational institution begins the

process of changing from being an institution which admits only
students of only one sex to being an institution which admits
69
students of both sexes, but only if it is carrying out a plan for such a
change which is approved by the Secretary of Education, whichever
is the later;
(3) Educational institutions of religious organizations with
contrary religious tenets
this section shall not apply to an educational institution which is
controlled by a religious organization if the application of this

subsection would not be consistent with the religious tenets of such
organization;
(4) Educational institutions training individuals for military
services or merchant marine
this section shall not apply to an educational institution whose
primary purpose is the training of individuals for the military
services of the United States, or the merchant marine;
(5) Public educational institutions with traditional and
continuing admissions policy
in regard to admissions this section shall not apply to any public
institution of undergraduate higher education which is an institution
that traditionally and continually from its establishment has had a
policy of admitting only students of one sex;
(6) Social fraternities or sororities; voluntary youth service
organizations
this section shall not apply to membership practices--
70
(A) of a social fraternity or social sorority which is exempt from

taxation under section 501(a) of Title 26, the active
membership of which consists primarily of students in
attendance at an institution of higher education, or
(B) of the Young Men's Christian Association, Young Women's
Christian Association, Girl Scouts, Boy Scouts, Camp Fire
Girls, and voluntary youth service organizations which are so

exempt, the membership of which has traditionally been
limited to persons of one sex and principally to persons of less
than nineteen years of age;
(7) Boy or Girl conferences
this section shall not apply to--
(A) any program or activity of the American Legion undertaken
in connection with the organization or operation of any Boys
State conference, Boys Nation conference, Girls State
conference, or Girls Nation conference; or
(B) any program or activity of any secondary school or
educational institution specifically for--
(i) the promotion of any Boys State conference, Boys
Nation conference, Girls State conference, or Girls Nation
conference; or
(ii) the selection of students to attend any such

conference;
71
(8) Father-son or mother-daughter activities at educational

institutions
this section shall not preclude father-son or mother-daughter
activities at an educational institution, but if such activities are
provided for students of one sex, opportunities for reasonably
comparable activities shall be provided for students of the other sex;
and
(9) Institution of higher education scholarship awards in
“beauty” pageants
this section shall not apply with respect to any scholarship or other
financial assistance awarded by an institution of higher education to
any individual because such individual has received such award in
any pageant in which the attainment of such award is based upon a
combination of factors related to the personal appearance, poise, and
talent of such individual and in which participation is limited to
individuals of one sex only, so long as such pageant is in compliance
with other nondiscrimination provisions of Federal law.
(b) Preferential or disparate treatment because of imbalance in
participation or receipt of Federal benefits; statistical evidence of
imbalance
Nothing contained in subsection (a) of this section shall be interpreted to
require any educational institution to grant preferential or disparate

treatment to the members of one sex on account of an imbalance which
72
may exist with respect to the total number or percentage of persons of that
sex participating in or receiving the benefits of any federally supported
program or activity, in comparison with the total number or percentage of
persons of that sex in any community, State, section, or other
area: Provided, That this subsection shall not be construed to prevent the
consideration in any hearing or proceeding under this chapter of statistical
evidence tending to show that such an imbalance exists with respect to the
participation in, or receipt of the benefits of, any such program or activity
by the members of one sex.
(c) “Educational institution” defined
For purposes of this chapter an educational institution means any public
or private preschool, elementary, or secondary school, or any institution of
vocational, professional, or higher education, except that in the case of an
educational institution composed of more than one school, college, or
department which are administratively separate units, such term means
each such school, college, or department.
73
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

§ 2000bb. Congressional findings and declaration of purposes
(a) Findings
The Congress finds that--
(1) the framers of the Constitution, recognizing free exercise of religion
as an unalienable right, secured its protection in the First Amendment to
the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as
surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise

without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme
Court virtually eliminated the requirement that the government justify

burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court
rulings is a workable test for striking sensible balances between religious
liberty and competing prior governmental interests.
(b) Purposes
The purposes of this chapter are--
(1) to restore the compelling interest test as set forth in Sherbert v.
Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205
(1972) and to guarantee its application in all cases where free exercise of
religion is substantially burdened; and
74
(2) to provide a claim or defense to persons whose religious exercise is

substantially burdened by government.
§ 2000bb-1. Free exercise of religion protected
(a) In general
Government shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability,
except as provided in subsection (b) of this section.

(b) Exception
Government may substantially burden a person’s exercise of religion
only if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
(c) Judicial relief
A person whose religious exercise has been burdened in violation of this
section may assert that violation as a claim or defense in a judicial
proceeding and obtain appropriate relief against a government. Standing
to assert a claim or defense under this section shall be governed by the
general rules of standing under article III of the Constitution.

§ 2000bb-2. Definitions
As used in this chapter--
75
(1) the term “government” includes a branch, department, agency,

instrumentality, and official (or other person acting under color of law) of
the United States, or of a covered entity;
(2) the term “covered entity” means the District of Columbia, the
Commonwealth of Puerto Rico, and each territory and possession of the
United States;
(3) the term “demonstrates” means meets the burdens of going forward
with the evidence and of persuasion; and
(4) the term “exercise of religion” means religious exercise, as defined
in section 2000cc-5 of this title.

§ 2000bb-3. Applicability
(a) In general
This chapter applies to all Federal law, and the implementation of that
law, whether statutory or otherwise, and whether adopted before or after
November 16, 1993.
(b) Rule of construction
Federal statutory law adopted after November 16, 1993, is subject to
this chapter unless such law explicitly excludes such application by
reference to this chapter.
(c) Religious belief unaffected
Nothing in this chapter shall be construed to authorize any government
to burden any religious belief.
76
§ 2000bb-4. Establishment clause unaffected

Nothing in this chapter shall be construed to affect, interpret, or in any
way address that portion of the First Amendment prohibiting laws
respecting the establishment of religion (referred to in this section as the
“Establishment Clause”). Granting government funding, benefits, or
exemptions, to the extent permissible under the Establishment Clause,
shall not constitute a violation of this chapter. As used in this section, the
term “granting”, used with respect to government funding, benefits, or
exemptions, does not include the denial of government funding, benefits,
or exemptions.
77
34 C.F.R. § 106.12
§ 106.12 Educational institutions controlled by religious
organizations.
(a) Application. This part does not apply to an educational institution
which is controlled by a religious organization to the extent application of
this part would not be consistent with the religious tenets of such
organization.
(b) Assurance of exemption. An educational institution that seeks
assurance of the exemption set forth in paragraph (a) of this section may
do so by submitting in writing to the Assistant Secretary a statement by

the highest ranking official of the institution, identifying the provisions of
this part that conflict with a specific tenet of the religious organization. An
institution is not required to seek assurance from the Assistant Secretary
in order to assert such an exemption. In the event the Department notifies
an institution that it is under investigation for noncompliance with this
part and the institution wishes to assert an exemption set forth in
paragraph (a) of this section, the institution may at that time raise its
exemption by submitting in writing to the Assistant Secretary a statement
by the highest ranking official of the institution, identifying the provisions

of this part which conflict with a specific tenet of the religious organization,
whether or not the institution had previously sought assurance of an
exemption from the Assistant Secretary.
(c) Eligibility. Any of the following in paragraphs (c)(1) through (6) of this
section shall be sufficient to establish that an educational institution is
78
controlled by a religious organization, as contemplated under paragraph

(a) of this section, and is therefore eligible to assert a religious exemption
to the extent application of this part would not be consistent with its
religious tenets:
(1) That the educational institution is a school or department of divinity.
(2) That the educational institution requires its faculty, students, or
employees to be members of, or otherwise engage in religious practices

of, or espouse a personal belief in, the religion of the organization by
which it claims to be controlled.
(3) That the educational institution, in its charter or catalog, or other
official publication, contains an explicit statement that it is controlled
by a religious organization or an organ thereof, or is committed to the
doctrines or practices of a particular religion, and the members of its
governing body are appointed by the controlling religious organization
or an organ thereof, and it receives a significant amount of financial
support from the controlling religious organization or an organ thereof.
(4) That the educational institution has a doctrinal statement or a
statement of religious practices, along with a statement that members
of the institution community must engage in the religious practices of,
or espouse a personal belief in, the religion, its practices, or the doctrinal
statement or statement of religious practices.
(5) That the educational institution has a published institutional

mission that is approved by the governing body of an educational
79
institution and that includes, refers to, or is predicated upon religious

tenets, beliefs, or teachings.
(6) Other evidence sufficient to establish that an educational institution
is controlled by a religious organization, pursuant to 20 U.S.C.
1681(a)(3).
(d) Severability. If any provision of this section or its application to any
person, act, or practice is held invalid, the remainder of this section or the
application of its provisions to any person, act, or practice shall not be
affected thereby.
80
Cal. Corp. Code § 9210

§ 9210. Exercise of powers; delegation of management
Subject to the provisions of this part and any provision in the articles or
bylaws:
(a) Each corporation shall have a board of directors. The activities and
affairs of a corporation shall be conducted and all corporate powers shall
be exercised by or under the direction of the board.

(b) The board may delegate the management of the activities of the
corporation to any person or persons provided that the activities and
affairs of the corporation shall be managed and all corporate powers shall
be exercised under the ultimate direction of the board.
81

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Case: 20-56156, 06/14/2021, ID: 12143745, DktEntry: 23, Page 1 of 96

In the United States Court of Appeals for the Ninth Circuit

JOANNA MAXON, ET AL.,

FULLER THEOLOGICAL SEMINARY, ET AL.,

Appeal from the United States District Court

APPELLEES’ ANSWERING BRIEF

Counsel for Defendants-Appellees

CORPORATE DISCLOSURE STATEMENT

/s/ Daniel H. Blomberg

TABLE OF AUTHORITIES ..................................................................... iv

JURISDICTIONAL STATEMENT ........................................................... 3

STATEMENT OF THE CASE .................................................................. 4

A. Title IX’s religious exemption and its enforcement

B. Fuller Theological Seminary ............................................................ 7

C. Plaintiffs’ dismissal from the School of Theology .......................... 10

D. Procedural history .......................................................................... 12

SUMMARY OF ARGUMENT ................................................................. 15

I. The Seminary is at the core of Title IX’s religious

A. The plain text and history of Title IX put the

1. Applying Title IX to the Seminary here would

2. The Seminary is controlled by a religious

3. Title IX does not require control by a separate,

B. The constitutional avoidance doctrine prohibits

1. Plaintiffs’ interpretation raises serious

2. Plaintiffs’ interpretation raises serious

3. This Court can construe Title IX’s religious

C. The Department of Education’s uniform,

1. The Department’s interpretation is entitled to

2. At a minimum, the Department’s interpretation

D. RFRA requires interpreting Title IX’s religious

E. Title IX does not require the Seminary to apply for

II. Plaintiffs’ claims violate the Religion Clauses. .................................. 48

A. Church autonomy prohibits courts from deciding

B. Church autonomy prohibits courts from

C. Church autonomy ensures that the selection and

III. Plaintiffs’ claims violate the freedoms of assembly and

IV. Plaintiffs’ procedural arguments fail. .............................................. 59

A. The district court properly considered exhibits

B. Dismissal with prejudice was proper. ......................................... 61

CERTIFICATE OF COMPLIANCE ........................................................ 64

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