9th Circuit agrees with panel, orders California school district to recognize Fellowship of Christian Athletes club

Sitting en banc, the 9th U.S. Circuit Court of Appeals reversed a district court ruling and ordered the San Jose school district to recognize the Fellowship of Christian Athletes (FCA) as an official student club, despite the fact that FCA would not agree to abide by the district’s nondiscrimination policy.

The school district derecognized the club in 2019, claiming that the Statement of Faith and Sexual Purity FCA requires all club leaders to affirm effectively bars LGBTQ+ students from serving, in violation of its policy, which seeks to foster inclusivity and belonging by requiring clubs to allow any student to be eligible for membership and leadership.

The district court declined to issue an injunction, concluding that the nondiscrimination policy is neutral toward religion, but a panel of the 9th Circuit initially — and now the entire appeals court — reversed that ruling on the grounds that the policy is not neutral and generally applicable to all clubs, and thus it is subject to heightened judicial scrutiny.

What makes a nondiscrimination policy lack neutrality? In this case, the appeals court found that among other problems, the school district fails to apply it consistently. From the ruling:

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. For example, the District’s mechanism allows it to evaluate which “groups of students” qualify for the equity policy’s objectives based on “race, ethnicity, gender, sexual orientation, language, disability, and socioeconomic status.” This authority “to decide which reasons for not complying with the policy are worthy of solicitude” on an ad hoc basis renders the not “generally applicable” and requires the application of strict scrutiny.

The majority opinion points to the fact that many other clubs are allowed to restrict membership and leadership eligibility on a case-by-case, “common sense” basis. Should the Senior Women club be required to accept male students, for example? Arguably not, the majority says, but the same logic must be applied to a Christian organization:

It is hardly a leap of logic to say that the Senior Women club benefits from having all female members to help their members feel more comfortable.… But at the same time, it makes equal sense that a religious group be allowed to require that its leaders agree with the group’s most fundamental beliefs. Simply put, there is no meaningful constitutionally acceptable distinction between the types of exclusions at play here. Whether they are based on gender, race, or faith, each group’s exclusionary membership requirements pose an identical risk to the District’s stated interest in ensuring equal access for all student to all programs.

The majority summarized its reasoning by quoting the U.S. Supreme Court’s decision in Kennedy v. Bremerton: “Under the First Amendment’s protection of free exercise of religion and free speech, the government may not ‘single out’ religious groups ‘for special disfavor’ compared to similar secular groups.

A dissenting opinion countered that the record did not support the majority’s conclusion that the district had selectively enforced its nondiscrimination policy, and it noted that the policy was neutral on its face.

You can read the opinion here.