San Jose Unified School District Discriminated Against Fellowship of Christian Athletes, Based on …
From Fellowship of Christian Athletes v. San Jose Unified School Dist., decided yesterday by the Ninth Circuit, in an opinion by Judge Kenneth Lee joined by Judge Danielle Forrest:
The Fellowship of Christian Athletes (FCA) requires students serving in leadership roles to abide by a Statement of Faith, which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. The San Jose Unified School District … revoked FCA’s status as an official student club at its high schools, claiming that FCA’s religious pledge requirement violates the School District’s non-discrimination policy….
The School District engaged in selective enforcement of its own non-discrimination policy, penalizing FCA while looking the other way with other student groups. For example, the School District blessed student clubs whose constitutions limited membership based on gender identity or ethnicity, despite the school’s policies barring such restricted membership. The government cannot set double standards to the detriment of religious groups only….
We apply strict scrutiny to government regulations that burden religious exercise unless those laws are neutral and generally applicable. A law is not neutral and generally applicable if it is selectively enforced against religious entities but not comparable secular entities. “[W]hether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.” … Finally, the “Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.”
Under strict scrutiny, the government can prevail only if it shows that its restrictions on religion “are justified by a compelling interest and [are] narrowly tailored to advance that interest.” Given that high bar, the defendants do not argue that their policies can pass muster under strict scrutiny; rather, they contend that strict scrutiny does not apply at all because their policies are neutral and generally applicable.
But the record before us shows that the School District’s non-discrimination policies have been, and continue to be, selectively enforced against FCA. Other secular student groups maintain facially discriminatory membership criteria but enjoy ASB recognition. In short, the School District targeted FCA because of its religious-based views about marriage and sexuality, and not merely because of its alleged violation of non-discrimination policies….
The ASB-recognized Senior Women of Leland High School maintains a discriminatory membership criterion that violates the All-Comers Policy. The Senior Women Club’s mission is to “connect the school’s women with local events.” The club’s constitution limits membership based on gender identity. Even though the Senior Women Club explicitly stated its intention to exclude males from membership—i.e., that they intend to discriminate based on gender identity in violation of the All-Comers Policy—the School District still granted it ASB recognition. This alone shows selective enforcement by the School District.
To be clear, there may be very good reasons for the Senior Women Club to have restricted membership. A female-only group may enhance mentorship, camaraderie, and networking for its members. But the School District’s All-Comers policy does not carve out exceptions for “benign” discriminatory membership rules. Simply put, the Senior Women Club’s constitution violates the School District’s All-Comers policy, yet the School District recognizes it as an ASB student club.
Still, the defendants argue that the Senior Women Club’s discriminatory membership rule should be excused because the club agreed to comply with the All-Comers Policy when it signed the school’s standardized club application form. The district court charitably said that there was “arguably some tension” between the Senior Women club’s membership criteria and its affirmation of the All-Comers Policy. The district court then resolved this “tension” in the School District’s favor because the plaintiffs had not proven that the Senior Women Club actually discriminates based on gender identity.
The district court clearly erred. First, the Senior Women Club’s discriminatory membership criterion and the All-Comers Policy are not merely in “some tension.” Rather, they are diametrically opposed to each other—only one can be true. Either membership is open only to female students or it is open to all students. And the club specified on the application form required by the School District for the 2021–22 school year that its membership was open only to “seniors who identify as female.” We fail to see how this club can maintain its restrictive membership criteria while complying with the All-Comers Policy.
The district court relied on the boilerplate nondiscrimination statement in the club application form that the Senior Women Club’s student leader signed as proof that the club does not discriminate based on gender identity. True, the boilerplate statement in this form does have the School District’s required non-discrimination language in it. But the Senior Women club modified that form twice by handwriting in discriminatory membership conditions based on gender identity. First, as noted above, the Senior Women Club’s leader handwrote that only “seniors who identify as female” can become members. To accentuate this point, she then handwrote th
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