The Fellowship of Christian Athletes (FCA) is a ministry group formed for student athletes to engage in various activities through their shared Christian faith. FCA holds certain core religious beliefs, including a belief that sexual intimacy is designed only to be expressed within the confines of a marriage between one man and one woman. FCA requires students serving in a leadership capacity to affirm a Statement of Faith and abide by a sexual purity policy.
In San Jose Unified School District, student-run organizations can apply for recognition as part of the District’s Associated Student Body (ASB) program. ASB recognition provides clubs with recruiting tools, such as inclusion in the official club list and student yearbook, access to ASB financial accounts and ASB-sanctioned fundraisers, an official campus faculty advisory, and priority access to meeting places on campus. Since the early 2000s, FCA chapters enjoyed ASB recognition at three District high schools. No student ever complained to the District that he or she wanted to hold a leadership position in an FCA chapter but was ineligible due to FCA”s religious requirements. Likewise no student ever complained that he or she felt excluded by FCA’s religious beliefs.
In April 2019, a teacher (Glasser) at a District school (Pioneer) obtained copies of FCA’s Statement of Faith and Sexual Purity Statement. He viewed these statements as objectionable and posted the statements on his whiteboard with a note: “I am deeply saddened that a club on Pioneer’s campus asks its members to affirm these statements. How do you feel?” In addition to the whiteboard note, Glasser sent two emails to the School’s principal with concerns about the pledge, especially the ways in which the pledge could impact LGBTQ+ students. Shortly thereafter, the School held a leadership committee meeting of department chairs and administrators, and decided to bring their concerns to the District. Two days later, the District stripped the club of ASB approval.
For the 2019-2020 school year, FCA applied for but was denied ASB recognition. Another club, the Satanic Temple club, was formed and granted ASB approval. For the 2020-2021 school year, FCA was granted provisional ASB approval.
In April 2020, two FCA student leaders at Pioneer, Pioneer FCA, and FCA National filed suit against the District and several school officials, seeking relief for (1) equal access to extracurricular school clubs under the Equal Access Act (EAA); (2) Free Speech, Free Expressive Association, and Free Exercise of Religion under the First Amendment; and (3) Equal Protection under the Fourteenth Amendment. In July 2021, Plaintiffs filed a motion for a preliminary injunction, requiring the Defendants to restore recognition to student chapters affiliated with FCA as official ASB approved student clubs.
In response to the litigation, the District adopted a new version of its non-discrimination policy for the 2021-2022 school year called the All-Comers Policy, which included language that required that ASB recognized student groups to permit any student to become a member or leader, if they meet “non-discriminatory criteria.” Despite the All-Comers Policy, schools in the District were allowed to maintain clubs with facially discriminatory membership requirements. For example, the Senior Women club retained approval even though it was open only to seniors who identify as female. Likewise the South Asian Heritage club could prioritize acceptance of south Asian students. FCA could not gain ASB approval under the All-Comers Policy so it did not apply for ASB recognition in the 2021-2022 school year.
The trial court denied Plaintiffs’ motion for a preliminary injunction, finding that the All-Comers Policy was unlikely to violate Plaintiffs’ rights. Plaintiffs appealed and a divided three-judge panel reversed the decision, ordering the District to recognize the FCA student groups. The District appealed, asking for a rehearing en banc.
Plaintiffs seeking a preliminary injunction must establish that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest.
Here, the en banc Court considered the merits of FCA’s First Amendment Free Exercise Clause claim. The Court stated that for laws or policies that burden religious exercise, they must be neutral and generally applicable, otherwise the law or policy must pass what is known as “strict scrutiny.”
To be considered neutral and generally applicable, the policy may not allow for individualized exemptions, may not treat comparable secular activity more favorably than religious exercise, and must not be hostile to religious beliefs. Here, the All-Comers Policy prohibited all ASB clubs from enacting discriminatory membership and leadership criteria, and were not generally applicable. The District retained discretion to grant individual exemptions and did so in a discriminatory manner—the District allowed exemptions based on the District officials’ use of “common sense,” for example, by allowing clubs and programs to restrict membership on attributes such as good character. The Court determined that the District treated comparable secular activity more favorably than religious exercise, for example, by allowing the Senior Women club to admit only those who identify as female. The Court determined that the District penalized FCA based on its religious beliefs.
Therefore, the District’s policies had to pass strict scrutiny, meaning the policies had to be narrowly tailored to advance a compelling government interest. Here, the District failed to show that it even considered less restrictive measures. As a result, the Court of Appeals reversed the trial court’s ruling and directed the trial court to reinstate FCA’s recognition as an ASB approved student club.
Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ. (9th Cir. 2023) __ F.4th__ [2023 U.S. App. LEXIS 24260].
Note: Although this case involved a public school district in California, it is relevant for private schools as well because it highlights the complexities that can arise in approving and denying student groups on school campuses.