Christian club can sue San Jose schools for discrimination, Ninth Circuit rules

SAN FRANCISCO (CN) — A student-athlete ministry group won a Ninth Circuit en banc panel's approval to proceed with discrimination claims against schools for removing their official recognition of its clubs, but not without sharp disagreement from the circuit's chief judge.

U.S. Circuit Judge Consuelo Callahan wrote the majority opinion Wednesday that a federal judge improperly denied the Fellowship of Christian Athletes’ motion for a preliminary injunction against the San Jose Unified School District. 

The group holds the belief that sexual relationships should be confined within marriage between a man and a woman. It said the school district violated its First Amendment rights when it revoked its status as an official student club on multiple campuses for violation of non-discrimination policies, after a principal testified that the club enforced a sexual purity statement and standard. Each year student organizations must submit applications for approval from school officials.

Reversing the lower court's decision, the 11-judge panel's majority held that the plaintiffs had organizational standing and its claims were not moot because the federal court frustrated the group’s mission.

“Often, anti-discrimination laws and the protections of the Constitution work in tandem to protect minority views in the face of dominant public opinions,” wrote Callahan, a George W. Bush appointee.

“However, this appeal presents a situation in which the two regrettably clash. While it cannot be overstated that anti-discrimination policies certainly serve worthy causes — particularly within the context of a school setting where students are often finding themselves — those policies may not themselves be utilized in a manner that transgresses or supersedes the government’s constitutional commitment to be steadfastly neutral to religion. “

The district’s nondiscrimination policies, prohibiting all school clubs from enacting discriminatory membership and leadership criteria, were not generally applicable, and therefore subject to strict scrutiny, the panel determined, and the plaintiffs demonstrated a likelihood of success on the merits of their free exercise claims. 

“While inclusiveness is a worthy pursuit, it does not justify uncertain exemptions or exceptions from the broad non-discrimination policies, which undermine their neutrality and general applicability and burden Free Exercise,” Callahan wrote. 

Chief U.S. Circuit Judge Mary Murguia dissented in full.

The chief circuit judge would have dismissed the appeal because the plaintiffs failed to prove their Article III standing for prospective injunctive relief. She said the majority handed down “a sweeping opinion with no defined limiting principle that ignores our standard of review and carte-blanche adopts plaintiffs’ version of disputed facts.” 

Murguia, a Barack Obama appointee, said that the plaintiffs had many months to submit evidence backing their motion, and did not. She said they did not prove that any student sought recognition for a fellowship club for the 2021-2022 school year or that the record supported the finding that the district selectively enforced its policy only against the group.

The judge also accused the majority of making both legal and factual errors.

“The result is an expansive opinion focused on past harms and based only in one party’s telling of a complex, disputed, and underdeveloped record,” Murguia wrote.

Under this decision, Murguia raised questions of whether all religious student clubs are exempt from a uniformly applied nondiscrimination policy, and if a public secondary school could be forced to officially recognize a religious student club that required members or leaders to adhere to racist, sexist or xenophobic beliefs or excluded students based on their race or gender.

“The majority goes out of its way to open doors without any consideration to or discussion of what is behind them,” Murguia wrote. 

Concurring with that majority on Wednesday was U.S. Circuit Judge Danielle Forrest, a Donald Trump appointee on the panel.

Forrest said the district excluded the group's students from fully participating in the program to prevent discrimination, and "selectively enforced its nondiscrimination policy to benefit viewpoints that it favors to the detriment of viewpoints that it disfavors.”

Meanwhile, U.S. Circuit Judges Milan Smith and Sung each partially concurred and partially dissented. 

Smith, a George W. Bush appointee, agreed that the plaintiffs were entitled to a preliminary injunction but said the majority opinion swept beyond its discretionary power. Sung, a Joe Biden appointee, said that Pioneer FCA has representational standing but FCA National does not have direct organizational standing to pursue prospective injunctive relief.

Fellowship of Christian Athletes, founded in 1954, has more than 7,000 student chapters.

U.S. District Judge Haywood Gilliam declined the group's motion in June 2022 to reinstate its recognition as an official Associated Student Body student club and enjoin the school district from uniformly applying its nondiscrimination policy to student groups in the upcoming school year.

Attorneys for the plaintiffs did not respond to a request for comment before press time.

San Jose Unified said in a statement Wednesday that the district is considering its next steps in the litigation. 

“While we are disappointed in today’s decision, the San José Unified School District respects the judicial system and its essential role in our democracy. The most important consideration will be how to continue to implement San José Unified’s long-standing policy against discrimination in district programs and activities," the district said in an emailed statement. 

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