Posted on October 26, 2023
Important Takeaways: The 9th Circuit Court of Appeals, sitting en banc (with all justices), reversed the denial of a motional for preliminary injunction in an action brought by the Fellowship of Christian Athletes (FCA) against the San Jose Unified School District (the District). The Court directed the district court to reinstate FCA’s recognition as an official Associate Student Body (ASB) approved student club within a School District.
Facts: A School District revoked FCA’s status as an ASB student club because the District alleged the Statement of Faith FCA leaders had to adopt violated the School District’s non-discrimination policies, because the statement includes the belief that sexual relationships should be within the confines of a marriage between a man and a woman.
Every year, the student groups in the District must submit applications to become an ASB student club. The ASB recognition allows the club to be included on the official club list and student yearbook, access to ASB financial accounts and ASB-sanctioned fundraisers, an official campus faculty advisor, and priority access to meeting spaces on campus.
In spring 2019, a teacher obtained a copy of the oath FCA’s group leaders took and posted it on his whiteboard for his first-period class, stating he was saddened by the affirmation and asking the students how they felt. This caused discomfort for students who were members of the FCA. The teacher also sent an email to the principal and two other faculty members asking if they were aware of the oath. The principal responded he was not aware of the oath and would discuss it with the administration team and the FCA leadership. A week later, the teacher sent a follow-up email to the principal asking if a club like this should be allowed on a public-school campus at all.
The District’s Climate Committee eventually met about the issue, and the administration decided that the FCA would be stripped of its ASB approval. The justification for this was that the District concluded that because a student could not be an officer of the club if they were homosexual, FCA violated the Non-Discrimination Policy of the District. FCA was allowed to remain on campus as a student interest group, but some teachers expressed concern that they would still be able to remain on campus at all. The summer following the 2018-2019 school year, the teacher then sent another email to the principal asking if FCA could be banned from campus altogether because they violated the District’s sexual harassment policy.
At the start of the 2019-2020 school year, the FCA applied for ASB recognition and was denied. Another club called the Satanic Temple Club was formed and granted ASB approval. That fall, some students organized a protest against FCA on their campus and distributed flyers with information about the protest. During one FCA meeting that fall, student newspaper reporters created what the FCA called an unsafe and targeted environment by taking many photos of those in attendance. At another FCA meeting, 15 to 25 Gay Straight Alliance members protested. Disruptions took place at all FCA meetings that school year.
The national chapter of the FCA then filed suit against the District alleging that failure to recognize FCA as an official club violated their equal access rights to extracurricular school clubs under the Equal Access Act, and their Free Speech, Expressive Association, Free Exercise, and Equal Protection rights.
After much litigation, the case made its way to the 9th Circuit Court of Appeals sitting en banc (with all justices hearing the case, instead of the standard 3). The FCA challenged the School District’s Non-Discrimination Policy and sought a preliminary injunction which would require the School District to give ABS approval to the FCA. The Court held that the policy had to pass strict scrutiny because it was not generally applicable since the District had discretion to grant exceptions from the policy, treated comparable secular activities more favorably than religious activities, and penalized FCA based on religious beliefs. Strict scrutiny means the policy must be narrowly tailored to a compelling state interest. The Court held that since the District did not show that it had considered less restrictive means than this policy required, the policy did not pass strict scrutiny, and therefore was unconstitutional.
To be successful in a request for a preliminary injunction, the party seeking the injunction must show they are likely to be successful on the merits. Since the court found that the non-discrimination policy would likely not pass strict scrutiny, the FCA could show they would likely be successful on the merits of their First Amendment claims and the injunction was granted. The School District had to recognize FCA as an ASB club.
What this means: School districts must apply neutral standards when designating extracurricular groups as official school groups. Policies that determine the eligibility of groups must be neutral to secular and religious groups and cannot favor one over another. Requiring officers to take oaths that are religious in nature is not a valid basis for which to deny a group official status in a public school.
Information about the case: Fellowship of Christian Athletes v. San Jose Unified School District, 9th Circuit Court of Appeals, September 13, 2013. Read it here.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin at 406-542-1300 to discuss these issues.