Law & Courts

Court Backs Fellowship of Christian Athletes in Clash Over School LGBTQ Bias Policy

By Mark Walsh — August 29, 2022 4 min read
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In a clash between religious groups’ rights and school district nondiscrimination policies aimed at protecting LGBTQ students, a federal appeals court on Monday sided with religious groups.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled 2-1 that the San Jose Unified School District in California likely violated the free-exercise rights of a Fellowship of Christian Athletes chapter when the district de-recognized the student club over a requirement that leaders abide by a “statement of faith” that includes a belief that sex be limited to marriage between a man and a woman.

The court reversed a federal district court and ordered that FCA chapters in the district be reinstated. The panel said the panel had selectively enforced a nondiscrimination policy, such as allowing a “Senior Women” club at one high school to receive receive Associated Student Body recognition in 2021-22 despite a group constitution that limits membership to female-identifying students.

“Under the First Amendment, our government must be scrupulously neutral when it comes to religion: It cannot treat religious groups worse than comparable secular ones. But the school district did just that,” the 9th Circuit panel majority said in the Aug. 29 decision in Fellowship of Christian Athletes v. San Jose Unified School District. “The school district engaged in selective enforcement of its own nondiscrimination policy, penalizing FCA while looking the other way with other student groups.”

FCA’s statements require leaders to back traditional marriage

The case involves the FCA chapter at Pioneer High School in San Jose, which had been a recognized student club since the early 2000s. The Fellowship of Christian Athletes national organization, which has some 7,000 chapters in colleges, high schools, and middle schools, requires chapter leaders to abide by its statement on faith and “sexual purity.” The latter says “The Bible teaches that the appropriate place for sexual expression is in the context of a marriage relationship” between “one man and one woman.” The group also has a statement referring to gender identity as being assigned at birth.

Peter Glasser, a social studies teacher at Pioneer High, raised questions about the FCA leadership requirement within the school, court papers say. Glasser told the Pioneer High principal in an email that the FCA’s “views on LGBTQ+ identity infringe on the rights of others in my community to feel safe and enfranchised on their own campus, even infringing on their very rights to exist.”

The principal, Herbert Espiritu, concluded that the FCA’s statements violated the district’s nondiscrimination policy, which protects on the basis of sexual orientation and gender identity.

After some consideration by the high school’s “climate committee,” the principal de-recognized the FCA chapter. Recognized clubs can have faculty advisors, are included on the school’s official list of clubs, may conduct on- and off-campus fundraisers and deposit funds in a school bank account, and have priority for school meeting space.

The court record cites further clashes and developments as FCA met on campus as a non-recognized club, and then the COVID-19 pandemic disrupted high school clubs for a time. For the 2021-22 school year, the district adopted an “all-comers” policy, meaning student clubs had to accept all students for membership and leadership positions.

Because the FCA chapter figured it would be futile to apply under that policy, the group remained unrecognized last school year. But its legal challenge, joined by the national FCA organization, made its way through the courts.

A federal district court denied FCA’s request for an injunction to be reinstated. But in the new decision this week, the 9th Circuit panel sided with FCA.

The majority said the group will likely prevail on its First Amendment free exercise claim because the school district had selectively enforced the all-comers policy and its earlier nondiscrimination policy.

“Other secular student groups maintain facially discriminatory membership criteria but enjoy ASB recognition,” the court said. The Senior Women of Leland High School was recognized last school year despite its constitution’s language limiting membership to females. A school district official testified during court proceedings that a Republican student club could be recognized event if it required club leaders to support the Republican platform.

The court said the district had in the past recognized such groups as Girls Who Code and Big Sisters/Little Sisters even though they limited membership to females, and the South Asian Club, which “prioritized” members of South Asian descent.

The court said FCA would suffer harm from dwindling membership if it was not granted a preliminary injunction reinstating it as a recognized club, which the court granted.

Judge Kenneth K. Lee wrote for the majority, and in a separate opinion only for himself, he said there was a “stench of animus” motivating the district’s decision to de-recognize FCA, based on comments by Glasser and other teachers.

Judge Morgan Christen, writing in dissent, said she would have dismissed FCA’s appeal for lack of standing because the record was not clear that the club intended to apply for official recognition going forward. She said the majority went too far in deciding the case on facts that have not been tested in court.

“Our schools should be places where students learn how to interact with each other as citizens, to resolve issues civilly, and to respect the judicial process,” Christen said. “Here, the court likely—and regrettably—adds fuel to the controversy at Pioneer High.”


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