Wu

ORDER

Our disposition in this ease was affirmed by the Supreme Court. Christian Legal Soc’y v. Martinez, — U.S. —, 130 S.Ct. 2971, 2995 , 177 L.Ed.2d 838 (2010). On remand, Christian Legal Society (“CLS”) asks us to remand with instructions that the district court consider its claim that Hastings College of Law selectively ap *485 plies its Nondiscrimination Policy against CLS. Before the Supreme Court, CLS contended that “[t]he peculiarity, incoherence, and suspect history of the all-comers policy all point to pretext.” Id. (internal quotation marks omitted) (alteration in original). The majority refused to address this argument, however, because “[njeither the District Court nor the Ninth Circuit addressed an argument that Hastings selectively enforces its all-comers policy, and this Court is not the proper forum to air the issue in the first instance.” Id. The Court then remanded with instructions for us to consider the pretext issue “if, and to the extent, it is preserved.” Id. True to the Court’s instruction, we consider whether, and to what extent, CLS preserved the issue of selective enforcement.

At the outset, it’s important to distinguish the two related discrimination…