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

MEMBER(S) INVOLVED: San Jose Unified School District

IMPORTANCE OF STATEWIDE ISSUE:

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 court 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.

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 district requested rehearing before the Ninth Circuit and 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 court, after providing a summary of the facts of the case that was very sympathetic to the plaintiffs and critical of the district, addressed San Jose USD’s argument that the plaintiffs did not have standing because no students applied for 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 also found that FCA had standing because it was required to “divert resources” from its other activities to continue the litigation because of San Jose USD’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 San Jose USD 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, 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 that incidentally burden religious conduct” were not applicable to this case where the facts indicated that San Jose USD 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.”

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.” After addressing these authorities, the court set out a test for violation of the Free Exercise Clause: (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 a violation of the Free Exercise clause.

In this case, because San Jose USD 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. Further, the court held that it engaged in a pattern of selective enforcement favoring secular activities and 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.” According to the court, “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.’”

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.