First Amendment/Equal Access Act — Nondiscrimination policies and student clubs

FIRST AMENDMENT/EQUAL ACCESS ACT —NONDISCRIMINATION POLICIES AND STUDENT CLUBS

Fellowship of Christian Athletes, et al. v. San Jose Unified School District, et al. – Federal Court of Appeals, Ninth Circuit (Case No. 215827)

MEMBER(S) INVOLVED: San Jose Unified School District

IMPORTANCE OF STATEWIDE ISSUE:

Because this matter involves a challenge to a school district’s nondiscrimination policies by a student club that excludes students in certain protected classes from holding leadership positions, it may impact the way local educational agencies (LEAs) in California implement their nondiscrimination policies with respect to student clubs. State law requires that LEAs maintain nondiscrimination policies and also prohibits discrimination based on various protected classes in school programs and activities. Federal laws, such as Title IX, also prohibit such discrimination. If a court were to agree with the Fellowship of Christian Athlete’s (FCA) claim that its First Amendment, Fourteenth Amendment and Equal Access Act rights require that it be allowed to exclude students in protected classes from its leadership positions but still have all of the rights and privileges of an Associated Student Body-recognized club, it would place all LEAs in an untenable position in which they would have to make exceptions to their nondiscrimination policies for religious clubs in contravention of state and federal law.

SUMMARY OF THE CASE:

In April 2020, FCA sued San Jose USD in the U.S. District Court, Northern District of California, alleging that the district violated the rights of students under the Equal Access Act, the First Amendment and the Fourteenth Amendment when it revoked the club’s ASB recognition at Pioneer High School. The district revoked the recognition because the club required student leaders to attest, among other things, that they believe marriage must exclusively be between one man and one woman. The district determined this requirement violated the district’s nondiscrimination policy, which is required by California law. However, the district still allowed FCA to meet on campus. As part of the lawsuit, FCA sought a preliminary injunction that would require the district to provide ASB recognition to FCA.

On June 1, the court denied the injunction. The court found that FCA was unable to establish a likelihood of success on the merits of its suit, which is the standard for a preliminary injunction. The court found that the plaintiffs did not demonstrate that the district violated their free speech or free expression rights, including by arguing that the nondiscrimination policy was implemented unfairly to them. The court summed up its ruling by stating, “… Plaintiffs fail to show that the facts and law clearly favor their argument that the [nondiscrimination] Policy has not been generally applied. Contrary to Plaintiffs’ assertions, District officials are not formally empowered to allow clubs to discriminate on the basis of religion, sexual orientation, or other protected basis. And Plaintiffs fail to show that District officials have actually given any clubs permission to discriminate in violation of the Policy.”

The plaintiffs appealed the denial of the preliminary injunction to the Ninth Circuit Court of Appeals. Because this is a matter of statewide concern, on July 25, the ELA filed an amicus brief before the Ninth Circuit Court of Appeals in support of the district’s position. The ELA’s brief to the Ninth Circuit focused on the plaintiffs’ claim that all student activities and educational programs operated by the district should be compared to the treatment of ASB clubs under the nondiscrimination policy. As argued by FCA, this would create a situation in which an LEA had to either allow a student club to discriminate on the basis of a protected class, in violation of California law, or to cease offering programs and educational offerings to students in certain groups, like special education.

CURRENT STATUS AND/OR OUTCOME:

On Aug. 29, a three-judge panel from the Ninth Circuit Court of Appeals issued a preliminary injunction and ruled in a 2-1 decision to reinstate FCA as an ASB-recognized club at Pioneer High School. The panel’s decision reversed the district court’s denial of FCA’s motion for a preliminary injunction (a court order to restore a circumstance as it was while legal proceedings take place). The panel held that both FCA National and Pioneer FCA have organizational standing to sue and will likely succeed in the free exercise claims against the district. The court only focused on the free exercise claim in its analysis of FCA’s likelihood of success on the merits, without providing an analysis of the likelihood of success for the other claims made (violation of the right to equal access to extracurricular school clubs under the Equal Access Act, free speech, expressive association and equal protection.)

The party requesting an injunction must show that there is a likelihood of success on the merits, they will suffer an irreparable harm, and the equities and public interest favor the issuing of the injunction. Using this analysis, the court found that FCA was likely to succeed on the merits of the free exercise claim, because the enforcement of the nondiscrimination policy by Pioneer was selective and targeted FCA. The district argued that the policy was not selectively enforced and instead met the constitutional requirement of being neutral and generally applicable. Disagreeing, the court found that this could not be the case, when, according to the court, other secular ASB-recognized clubs on campus were permitted to exclude students in protected classes from joining. The court specifically focused on the “Senior Women Club” and the requirement that members of the club identify as female. This, the court stated, shows that other clubs are permitted to function as ASB clubs while excluding students from membership in violation of the policy and FCA was targeted because of its religious views. In addition, a concurring opinion added concerns about perceived animus towards “the students’ religious beliefs” on the Pioneer High campus, which furthered the lack of neutrality and general applicability of the nondiscrimination policy as applied. The court primarily relied on the statements of a particular teacher to demonstrate this religious animus.

As the district could not meet the more minimal requirement of neutrality and general applicability, the court held that the policy could not pass the heightened “strict scrutiny” analysis that requires a government action to be narrowly tailored to a compelling government interest. The panel also rejected the district’s argument that an analysis of future action and potential harm that relies on application of the nondiscrimination policy in the past is inaccurate and incorrect because the district implemented a new “all-comers” policy as an update to the nondiscrimination policy. The court disagreed with the district’s argument because “past examples of selective enforcement inform whether the School District is still selectively enforcing the ‘new’ All-Comers policy.”

Based on the likelihood of the success of the free exercise claim, the court went on to hold that FCA would suffer irreparable harm in two ways. First, the loss of a constitutional right is a sufficient harm. Second, the lost opportunity to promote its mission and recruit new members without ASB recognition on campus was an additional harm. (According to the trial court, FCA did have the ability to recruit new members and meet on campus.) These harms also apply when showing that the balance of equities and public interest (which merge in consideration when the opposing party to an injunction is a government entity) favor the injunction. As the court held there is a likelihood for success on the merits of the free exercise claim, an irreparable harm to FCA, and the balance of equities and public interest favor the injunction, the court issued the injunction requiring Pioneer High to reinstate FCA as an ASB club.

The dissenting judge of the three-judge panel emphasized that the majority inappropriately acted as a factfinder when analyzing the likelihood of FCA’s success and the findings of the district court were not deferred to as they should have been. Further, the analysis was not needed because FCA could not properly show that they had standing and therefore the injunction should not have been issued.

The district has requested rehearing before the Ninth Circuit. The ELA filed an amicus brief in support of the district’s request. The brief focused on two aspects of the Ninth Circuit’s decision: 1) the Ninth Circuit’s reliance on the actions of one teacher in determining that the district demonstrated religious animus toward FCA was both contrary to legal authority and raises potential significant policy concerns, including that LEAs could be held responsible for statements of their employees, who are exercising their free speech rights; and 2) the Ninth Circuit’s remedy, which required the district to allow FCA to discriminate against LGBTQ students instead of requiring the district to enforce its nondiscrimination policies consistently against all ASB clubs would require districts to violate California antidiscrimination laws. The district is awaiting the Ninth Circuit’s decision as to whether it will grant rehearing.

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