The Fellowship of Christian Athletes (FCA) is an international ministry group for student athletes that has student clubs at many schools. The FCA clubs in San Jose Unified School District organize regular worship activities and state that they welcome all students to participate in events. However, FCA clubs require their student leaders to affirm core religious beliefs identified in FCA’s Statement of Faith. One of those beliefs is that sexual intimacy should only occur within a marriage between one man and one woman. Students serving in a leadership capacity must affirm the 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 recognized clubs get benefits 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 high schools in the District. No student ever complained to the District that they wanted to hold a leadership position in an FCA chapter but was ineligible due to FCA’s religious requirements. No student ever complained that they felt excluded by FCA’s religious beliefs.
Peter Glasser is a teacher at Pioneer High School, one of the schools in the District. In April 2019, Glasser obtained copies of FCA’s Statement of Faith and Sexual Purity Statement. He 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?” Glasser also 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 FCA club of ASB recognition.
For the 2019-2020 school year, the School denied FCA’s application for ASB recognition. However, the School granted ASB recognition for a new club called the Satanic Temple club. For the 2020-2021 school year, the pandemic forced schools to operate remotely. That year, the School granted provisional ASB recognition to all clubs, including FCA.
In April 2020, two FCA student leaders at Pioneer, Pioneer FCA, and FCA National sued the District and several school officials. They argued the District violated their rights to (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. The FCA students and FCA groups asked the trial court to force the District to restore ASB recognition for FCA student chapters.
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. The All-Comers Policy required ASB recognized student groups to permit any student to become a member or leader, if they met “non-discriminatory criteria.” The policy did not define “non-discriminatory criteria.” Despite the All-Comers Policy, schools in the District were allowed to maintain clubs with discriminatory membership requirements. For example, the Senior Women club retained ASB approval even though it was only open to seniors who identify as female. Likewise, the South Asian Heritage club could prioritize acceptance of South Asian students. No FCA club applied for ASB recognition in the 2021-2022 school year because the All-Comers Policy would have prevented them from selecting leaders based on their agreement with the club’s faith.
The trial court denied FCA’s request to make the District restore ASB recognition to FCA student clubs. The trial court said the All-Comers Policy was unlikely to violate FCA’s rights. FCA appealed to the Ninth Circuit Court of Appeal and a divided three-judge panel reversed the decision and ordered the District to recognize the FCA student groups. The District appealed, asking for a rehearing en banc, which is a rehearing in front of eleven judges on the Ninth Circuit Court of Appeal.
The Court of Appeal considered the FCA’s argument that the District had violated their First Amendment rights to free expression and exercise of religion. The Court of Appeal stated that laws or policies that burden religious exercise must be neutral and generally applicable, otherwise the law or policy must pass what is known as “strict scrutiny.” Policies that are neutral and generally applicable (1) may not allow for individualized exemptions, (2) may not treat comparable secular activity more favorably than religious exercise, and (3) must not be hostile to religious beliefs.
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. For example, the District allowed exemptions based on the District officials’ use of “common sense,” 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, the District allowed the Senior Women club to admit only seniors 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. Strict scrutiny means the policy is only valid if the government can show that it is necessary to achieve a compelling government interest. Here, the District failed to show that it even considered less restrictive measures. The Court of Appeal reversed the trial court’s ruling and directed the trial court to order the District to reinstate FCA’s recognition as an ASB recognized 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: This case shows that selective enforcement of policies can create constitutional violations. Here, the Ninth Circuit found that the District treated a religious group less favorably than comparable secular groups, which violates the First Amendment’s Free Exercise Clause.