Editor’s Note: The following blog post contains a technical analysis of a recent decision in Fellowship of Christian Athletes v. San Jose Unified School District. The main blog post is prefaced with a brief summary designed for those without legal training. The heart of the blog contains a deep dive into the details of the case and relevant precedent. For the full history, readers are also encouraged to read a September 2022 blog on previous developments in the case that set the stage for the September 13 ruling.
Lay summary
- A recent decision by the full Ninth Circuit Court of Appeals reversed a June 2022 decision in favor of San Jose USD and paved the way for the reinstatement of a religiously-themed extracurricular club in the district.
- San Jose USD had denied the Fellowship of Christian Athletes access to campus because of the group’s requirement that FCA leaders affirm the belief that marriage is only between a man and a woman, a measure the district viewed as a violation of its non-discrimination policy. FCA challenged this policy in court, seeking an injunction that would prevent San Jose USD from implementing the ban.
- The injunction was denied by district court in June 2022, after which FCA appealed to a three-judge panel of the Ninth Circuit. The three-judge panel ruled in favor of FCA and overturned the district court’s previous ruling for San Jose USD. San Jose USD then requested that the full Ninth Circuit court reconsider the decision of its three-judge panel. The full court effectively reached the same decision as the three-judge panel but also expanded on the original opinion, citing recent U.S. Supreme Court decisions in religious freedom cases and directing the district court to order that San Jose USD reinstate FCA as a club. The court, in reaching its decision, noted that San Jose USD made exceptions to its nondiscrimination policies for non-religious clubs, but failed treat FCA similarly, and that district employees demonstrated animus toward FCA’s religious tenants.
- The decision in Fellowship of Christian Athletes v. San Jose Unified School District is the latest in a string of Circuit and U.S. Supreme Court decisions expanding the parameters for religious expression in public schools. The Ninth Circuit decision on the injunction will remain decisive unless San Jose USD decides to appeal to the U.S. Supreme Court. Absent that appeal, the matter will be returned to the district court to be decided on the merits.
Technical analysis
On Sept. 13, 2023, the Ninth Circuit, sitting en banc (meaning the full panel of judges were present)issued a decision in favor of the plaintiffs Fellowship of Christian Athletes’ (FCA). The decision in Fellowship of Christian Athletes v. San Jose Unified School District reversing the district court’s denial of FCA’s motion for a preliminary injunction and directing the court to enter an order reinstating FCA’s Associated Student Body (ASB) recognition.
This decision was issued after the San Jose USD requested the full court to reconsider the original decision issued by a three-judge panel that also found in favor of the plaintiffs.
As set forth in a September 2022 blog post, FCA sued the district in April 2020 over the district’s decision to deny it recognition as an ASB club over its requirement that leaders of the club attest to certain tenants of the organization, including that marriage is between one man and one woman. The district determined that this requirement violated its nondiscrimination policy. FCA also requested an injunction requiring the district to re-recognize FCA as an ASB club.
In September 2022, the district court denied the injunction, for reasons set forth in the September 2022 blog. FCA appealed the decision to a three-judge panel of the Ninth Circuit, and, as we discussed in another blog post, the panel overturned the district court’s decision. The district sought to have the full Ninth Circuit hear the decision, en banc, and the full panel upheld the three-judge panel’s decision, adding its own analysis.
The court, after providing a summary of the facts of the case that included criticisms teachers and students had leveled at FCA, addressed the district’s argument that the plaintiffs did not have standing. More specifically, the district argued that the plaintiffs did not have standing because no students applied for FCA to have recognition as an ASB club during the 2021–22 school year and they could not establish that any student intended to apply for ASB recognition in the 2022–23 school year. The court disagreed, finding that FCA did not apply for recognition because its leaders were “discouraged by the district’s policies.” The court placed heavy weight on a declaration by an adult leader in the FCA national organization who stated that several students wanted to have ASB recognition for FCA in the school years at issue and declined to find that the declaration constituted hearsay as argued by the district. Further, after the initial panel decision from the Ninth Circuit, two students applied for ASB recognition. (The court allowed this supplemental evidence to be filed, despite disagreement from a dissenting judge.) The court also found that FCA had standing because it was required to “divert resources” from its other activities to continue the litigation because of the district’s actions.
As to the merits of the injunction, the court found that FCA demonstrated that it was likely to succeed on the merits of its First Amendment Free Exercise Clause claims against the district and, thus, an injunction is appropriate. The court noted that the district court erred by finding that FCA had to meet a heightened standard to obtain a mandatory injunction that requires action, finding instead that the request was for a prohibitory injunction that stops action. Here, the injunction was to stop the district from no longer recognizing FCA as an ASB club and not to require the district to recognize FCA as an ASB club, as FCA clubs had ASB recognition on district campuses for nearly 20 years before the incidents leading to the litigation. Thus, the Ninth Circuit held that FCA did not have to make the showing required by the district court.
The court went on to find that the district court’s reliance on cases that held, “the Free Exercise Clause does not inhibit enforcement of otherwise valid regulations of general application [i.e., the nondiscrimination policy] that incidentally burden religious conduct” were not applicable to this case where the facts indicated that the district allowed clubs to restrict membership on protected classifications (e.g., the Senior Women’s Club) but did not allow FCA to restrict is membership. In other words, the policy was not one of “general application.” Instead, the court relied on more recent U.S. Supreme Court precedent regarding what it means to be a “generally applicable” policy, which held that “the mere existence of government discretion is enough to render a policy not generally applicable.” (See Fulton v. City of Philadelphia (2021) 593 U.S. —- [holding that the City of Philadelphia’s refusal to renew contract with adoption agency due to its policy of refusing to allow same sex couples to adopt violated the Free Exercise Clause because the policy at issue was not neutral or generally applicable, as “[a] law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by creating a mechanism for individualized exemptions”].) In other words, if the district had the discretion to allow exceptions to its nondiscrimination policy, such as allowing the Senior Women’s Club to limit its membership to only seniors who were women, the policy was, by definition, not a policy of general application. This was also true of the “all comers” policy that the district adopted after the lawsuit was originally filed.
Further, the court disagreed with the district’s citation of prior cases holding that where policies burdened religion, there was no violation of the Free Exercise Clause where there was no intent to “target religious belief or conduct” or engage in viewpoint discrimination. The Ninth Circuit held that more recent Supreme Court precedent rejected a “targeting” requirement and instead has held that, “treating any comparable secular activity more favorably than religious exercise” prevents a law from being “neutral or generally applicable.” (See Tandon v. Newsom (2021) 593 U.S. —- [holding that COVID restrictions on in-person religious gatherings violated the Free Exercise clause because secular in-person activities were not subject to the same restrictions].) In making this holding, the Court overturned earlier Ninth Circuit precedent, Alpha Delta Chi-Delta Chaper v. Reed (9th Cir. 2011) 648 F.3d 790, which required a showing of “targeting” religious exercise to sustain a claim for a violation of the Free Exercise Clause.
After addressing these authorities, the court set out a test for determining whether a policy must be subject to strict scrutiny. In order to avoid strict scrutiny: (1) a neutral, generally applicable policy may not have a “mechanism for individual exemptions”; (2) the government may not treat comparable secular activity more favorably than religious exercise; and (3) the government may not act in a manner hostile to religious belief or inconsistent with the Free Exercise’s prohibition on “even subtle departures from neutrality.” A violation of any one of the three prongs constitutes subjects a policy to strict scrutiny. In this case, the court held that strict scrutiny applied because the district’s implementation of its nondiscrimination policies failed all three prongs.
First, because the district retains and exercises significant discretion in applying exceptions to its own programs, including those outside of ASB, it did not act with the neutrality required under the Ninth Circuit’s test. Second, the court held that the district engaged in a pattern of selective enforcement that favored secular activities, but that “there is no meaningful constitutionally acceptable distinction between the types of exclusions at play here.” Finally, the court held that the behavior of its administrators and teachers, particularly on the Climate Committee that recommended no longer recognizing FCA as an ASB club demonstrated “religious animus,” relying on the Supreme Court precedent of Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts. Comm’n (2018) 584 U.S. —-. As noted by one of the dissents to the majority opinion, this holding actually goes beyond the Masterpiece Cakeshop holding, as that opinion applied only to a formal, adjudicative body, the Colorado Civil Rights Commission. Here, the court relied on the Climate Committee, a non-decision-making body made up of teachers and staff that had no role in removing FCA’s ASB recognition. The dissent held that, given the Climate Committee’s role, FCA’s “claim of animus collapses.” This is, certainly, a concerning piece of the majority decision, given that teachers and staff have first amendment rights and are, typically, not empowered to speak for the district.
As a final step, the court analyzed whether the district’s implementation of its nondiscrimination policies satisfied the strict scrutiny standard, which requires that the policies be “narrowly tailored to advance a compelling governmental interest.” The court noted that the district failed to offer any showing that it considered less restrictive measures than determining that FCA would no longer be recognized as an ASB club, it failed to meet the standard. As a result, FCA demonstrated it would likely prevail on its Free Exercise claims. The court also noted, with a short analysis, that FCA also demonstrated the other factors necessary to obtain a preliminary injunction.
The court summarized its decision by stating, “We do not in any way minimize the ostracism that LGBTQ+ students may face because of certain religious views, but the First Amendment’s Free Exercise Clause guarantees protection of those religious viewpoints even if they may not be found by many to ’be acceptable, logical, consistent, or comprehensible.’” Several judges dissented to all or a portion of the majority opinion, including arguing that the majority went well beyond the bounds of its authority when ruling on an appeal of a preliminary injunction in how it addressed FCA’s claims and created precedent not required to find in favor of FCA.
This opinion addressed only the injunction requested by FCA. The district court must now issue the injunction, after which the case will be heard on the merits. The district could also appeal the issue to the U.S. Supreme Court.
