A Welcome Boost for Religious Freedom on Campus

Kim Colby March/April 2024
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Four years after Christian high school students were denied equal access, a court reaffirms robust First Amendment protections.

In September last year a federal appeals court handed down a major religious freedom decision that protects religious individuals and religious organizations within the nine westernmost states and benefits religious freedom nationwide. In Fellowship of Christian Athletes v. San Jose Unified School District Board of Education,1 the United States Court of Appeals for the Ninth Circuit held that a California school district unconstitutionally discriminated against a religious student group when high school officials punished the group for requiring its student leaders to agree with the group’s religious beliefs.

The case began in April 2019 when a high school teacher at Pioneer High School in San Jose Unified School District posted on his classroom whiteboard a statement of the Fellowship of Christian Athletes’ (“FCA”) religious beliefs regarding sexual conduct and marriage. The teacher wrote beside the FCA religious beliefs,  “I am deeply saddened that a club on Pioneer’s campus asks its members to affirm these statements. How do you feel?”

Sitting in his classroom were two students who led the FCA chapter at Pioneer High School. They were dismayed to see their teacher disparaging FCA’s religious beliefs and felt insulted and greatly distressed. After class they expressed their concerns to their teacher, particularly noting the inaccurate claim that FCA members (as opposed to its leaders) had to affirm any statement.

Fellowship of Christian Athletes student chapters had met in the school district’s high schools for approximately 20 years, including for several years at Pioneer High School. All students of any faith and no faith are welcome to be members of FCA student chapters. Only student leaders are asked to agree with FCA’s religious beliefs. It is common sense that a religious group would want its leaders to agree with its religious beliefs. But school officials claimed that FCA’s requirement that its leaders agree with its religious beliefs violated the school district’s nondiscrimination policy.

Within 10 days the FCA student group was de-recognized by the principal. The school’s Climate Committee, which was composed of Pioneer administrators, department chairs, and teachers, concluded that Pioneer FCA’s requirement that its student leaders agree with its religious beliefs clashed with the school’s core values of inclusiveness and open-mindedness. The FCA students were allowed to continue to meet informally but were denied many benefits that recognized student groups enjoyed.

At the beginning of the following school year, the FCA students again applied to be treated like other student groups. But school officials continued to deny FCA recognition as an official student group, even as they recognized the Satanic Temple Club as an official student group. Throughout the school year students protested outside the FCA meetings. The school news­paper harassed the FCA students, entering one FCA meeting to take hundreds of photos of the students in attendance. The senior girls who led FCA testified that they dreaded coming to school because of the harassment.

After many futile attempts to persuade the school district to obey both the First Amendment and the Equal Access Act, a law passed by Congress in 1984 to protect students’ right to meet on campus for religious, political, or ideological speech, the students and FCA filed a federal lawsuit. The case, in which I am cocounsel, was brought by Christian Legal Society’s Center for Law & Religious Freedom, which later partnered with the Becket Fund for Religious Liberty in representing FCA, the Pioneer FCA chapter, and two of its student leaders.

Initially, the FCA students lost their request for injunctive relief in the district court. But on appeal, a three-judge panel of the Ninth Circuit ruled in their favor. The school district then petitioned for rehearing en banc, that is, additional review by a panel of 11 Ninth Circuit judges. On September 13, 2023, the en banc panel issued a broad ruling, 9-2, that the students’ rights had been violated in three separate and independent ways under the free exercise clause, as well as under the free speech clause and the Equal Access Act.

The court ruled that the school district had violated the free exercise clause when it misapplied its nondiscrimination policy (and later its purported all-comers policy) to penalize a religious student group for requiring its leaders to agree with its religious beliefs. The court identified three separate and independent free exercise clause violations, as follows:

First, in 2021, in Fulton v. City of Philadelphia,2 the Supreme Court clarified that a government policy that allows for any individualized exemptions is not generally applicable and, therefore, violates the free exercise clause—unless the government demonstrates a compelling interest achieved by narrowly tailored means. The Ninth Circuit found that the school district provided numerous individualized exemptions to both its nondiscrimination policy and its so-called all-comers policy for other student groups as well as the district’s own programs.

Second, in 1993, in Church of the Lukumi Babalu Aye v. City of Hialeah,3 the Supreme Court ruled that a government had to show a compelling interest if it treated a religious activity less favorably than a comparable secular activity. In 2021, in Tandon v Newsom,4 the Supreme Court explained that the question was not whether a secular activity was the right comparator to a religious activity. Instead, the question was whether the government applied the same risk assessment to all secular activities as it applied to religious activities. The Ninth Circuit ruled that the school district stringently applied its nondiscrimination policy to FCA’s religious conduct while exempting various secular activities’ discriminatory conduct. For example, the school district recognized Senior Women Club, a student group that limited both its leadership and membership to women, while refusing to recognize FCA, a religious club that limited its leadership (not membership) to those who shared its religious beliefs. This double standard was unconstitutional.

Third, the school district’s hostility to FCA’s religious beliefs also violated the free exercise clause. As the Supreme Court observed in 2018 in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the government may not “act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.”5

Besides these violations of the free exercise clause, the school district also violated the FCA students’ rights under the free speech clause and the Equal Access Act. Because the court was sitting en banc, it had the authority to overrule prior Ninth Circuit precedent such as its 2011 decision in Alpha Delta Chi-Delta Chapter v. Reed.6 That decision permitted a public university to utilize its nondiscrimination policy to deny recognition to religious student groups with religious leadership and membership requirements. So Alpha Delta Chi is no longer a sword hanging over religious student groups’ heads.

Finally, the school district had relied heavily on a 2010 Supreme Court decision, Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez,7 to justify its discriminatory treatment of FCA. But the Ninth Circuit rightly distinguished the Martinez decision as exceedingly narrow and based on the unique facts of that case. Explaining that the Supreme Court had clarified its free exercise analysis since Martinez, the Ninth Circuit ruled the school district’s application of a purported all-comers policy to justify FCA’s exclusion was unconstitutional.

The Ninth Circuit’s robust free exercise analysis will benefit all religious individuals and religious organizations within its jurisdiction. Equally important, the Ninth Circuit’s decision in favor of the FCA students sends a strong reminder to public school administrators and teachers that every student has the right to attend a public school without fear of being penalized for his or her religious beliefs.

1 82 F.4th 664 (9th Cir., 2023) (en banc).

2 593 U.S. ---, 141 S. Ct. 1868 (2021).

3 508 U.S. 520 (1993).

4 593 U.S. 61 (2021) (per curiam).

5 584 U.S. 617, ---, 138 S. Ct. 1719, 1731 (2018).

6 648 F.3d 790 (9th Cir., 2011).

7 561 U.S. 661 (2010).

Article Author: Kim Colby