AUTHORS
John Appelbaum
Clarisa Sudarma
Ryan C. Griffith
Carmen L. Gibbs
Fellowship of Christian Athletes v. San Jose Unified School District (Ninth Cir. 2022) 46 F.4th 1075, filed Aug. 29, 2022; vacated and ordered to rehearing en banc, 59 F.4th 997, filed Jan. 18, 2023; injunction issued, 64 F.4th 1024, filed Apr. 3, 2023
The Ninth Circuit held that a public school district cannot—and does not—advance its stated interest in non-discrimination by discriminating against a religious student club.
The Fellowship of Christian Athletes ("FCA") is a nationwide organization that espouses biblical views, including requiring student leaders to sign a sexual purity statement, to wit, that marriage is only between a man and woman. FCA was a member of the Associated Student Body ("ASB") clubs at Pioneer High School in the San Jose Unified School District. Numerous clubs belong to the ASB, e.g.: Bachelor Nation, Communism Club, Girls Who Code, Mermaids Club, Persian Club, Shrek Club, and The Satanic Temple Club. Some of the benefits of ASB membership were priority booking of rooms, inclusion in the yearbook, and being provided a faculty advisor. The FCA had been a recognized club at Pioneer High since the early 2000's and had no disputes with the school until 2019.
In 2019, social studies teacher Peter Glasser obtained a copy of the FCA's sexual purity statement. The teacher deemed the sexual purity statement, including its restrictive view of marriage, to be "bullshit." Peter Glasser posted the sexual purity statement in his classroom the day after receiving it, and added this to it: "I am deeply saddened that a club on Pioneer's campus asks its members to affirm these statements." Two members of the FCA were in his classroom and were upset and hurt by their teacher's statement regarding their religious beliefs.
This was only the first of Peter Glasser and Pioneer High's actions to discredit and shame the FCA. As the concurring opinion states, Peter Glasser channeled his inner Martin Luther, but instead of creating a Reformation, he demanded an Inquisition. To that end, Mr. Glasser asked the school principal, Herbert Espiritu, whether FCA's views belong on a high school campus, suggesting that it may create an implicit message that Pioneer High approves of the FCA's values. Mr. Glasser also asserted that attacking the views of the FCA was the only way to make a better campus.
Principal Espiritu agreed with the concerns raised about FCA, believing that its statement on marriage undermined the core value of open-mindedness, and he decided that the school should take a united stance.
The result was that FCA lost its ASB recognition on the grounds that its sexual purity statement implied that a homosexual student would not be allowed in the club. According to the school, FCA violated the school's non-discrimination policy, which states that: "All district programs and activities within a school under the jurisdiction of the superintendent of the school district shall be free from discrimination, including harassment, with respect to the actual or perceived ethnic group, religion, gender, gender identity, gender expression, color, race, ancestry, national origin, and physical or mental disability, age or sexual orientation."
This was the first time that Pioneer High had stripped a student organization of its ASB recognition. For the 2019-2020 school year, the FCA's efforts to regain its ASB status failed. However, the club still operated, and teacher Peter Glasser was unsatisfied. Therefore, Mr. Glasser wrote to Principal Espiritu that the continued existence of the club created a hostile work environment and should be banned from campus completely. Another teacher, Danni McConnel, joined Mr. Glasser's cause and began urging Pioneer High students to protest FCA meetings. Students and teachers protested each meeting of the FCA. The school newspaper began taking photos of the students who attended the meetings, and when one journalism student felt bad about taking pictures of the FCA members, he was called an "idiot" by the teacher in charge of the student newspaper, Jason Goldman-Hall.
Two members of the FCA sued the school for alleged harassment, to recover damages, and to obtain injunctive relief requiring defendants to restore official recognition to student chapters affiliated with National FCA, including the FCA at Pioneer High. The federal district court dismissed the students' harassment claim because the students graduated in 2020. Thereafter, in January 2021, the district court granted in part defendants' motion to dismiss. In July 2021, plaintiffs filed their third amended complaint, which is the operative pleading, where they alleged that defendants violated their rights to: (1) equal access to extracurricular school clubs under the Equal Access Act (EAA), 20 U.S.C. § 4701 et seq.; (2) Free Speech, Expressive Association, and Free Exercise of Religion under the First Amendment; and (3) Equal...
