School must recognize Christian club that excludes LGBT kids

In spring 2019, a teacher at Pioneer High School in San Jose posted a message on his classroom whiteboard questioning a “Sexual Purity” statement that a club for Christian student athletes was requiring its leaders to sign.

The club’s statement said sexual relationships should exist only between married, heterosexual couples. The teacher wrote that he was “deeply saddened” that a club on the public school campus made its leaders “affirm” those ideas, and he asked students what they thought.

The resulting firestorm led to the San Jose Unified School District rescinding recognition of the Fellowship of Christian Athletes for excluding LGBTQ students in violation of the district’s nondiscrimination policy. In response, the club and its international parent organization sued in federal court, alleging religious discrimination.

On Monday, the Fellowship of Christian Athletes won a major victory when a three-judge panel of the U.S. 9th Circuit Court of Appeals ordered the club be reinstated as an official student group for the current school year while litigation between the parties continues in the lower district court.

Judge Kenneth Kiyul Lee, a Trump appointee, wrote for the appellate court that the case pitted “two competing values that we cherish as a nation: the principle of non-discrimination on the one hand, and the First Amendment’s protection of free exercise of religion and free speech on the other hand.”

But, he wrote, the question before the appellate court was simpler than that.

Evidence showed the school district had not applied its antidiscrimination policy equally to all student groups, Lee wrote, but instead “engaged in selective enforcement” that unfairly targeted the Fellowship of Christian Athletes for its religious beliefs while letting secular groups that violated the policy go unpunished.

That was a violation of the free exercise clause of the 1st Amendment, he wrote.

“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,” Lee wrote. “But the School District did just that.”

As an example, the judge noted that a “Senior Women Club” was recognized by the school district despite excluding male students, and that a “Big Sisters/Little Sisters” club was recognized even though it “obviously intended” to serve female students, not male students.

Lee wrote that the court did not intend to “minimize the ostracism that gay and lesbian students may endure” because of the Fellowship of Christian Athletes’ religious views. But, he wrote, “in our pluralistic society in which people from diverse backgrounds must coexist despite having starkly different worldviews, the Free Exercise Clause requires the government to respect religious beliefs and conduct, even if many people may find such beliefs to not be ‘acceptable, logical, consistent, or comprehensible.’”

Lee’s ruling cited several recent court decisions in favor of religious groups over government bodies, including by the U.S. Supreme Court, which has come down solidly on the side of religious organizations in recent disputes.

Lee’s opinion adds to that body of precedent, further protecting religious organizations’ right to freely exercise their religious beliefs, said Daniel Blomberg, an attorney for the club.

Blomberg said the San Jose school district had singled out students in the club with “shocking discrimination” and subjected them to “bullying” because of their religious beliefs, and that Lee’s ruling “put an end to this discrimination and ensured FCA students are treated fairly and equally.”

The school district said in a statement Monday that it was “reviewing the court’s opinion, assessing options, and will determine next steps as soon as possible.”

It also said the “most important consideration will be how to continue to implement” its antidiscrimination policies.

The appellate court’s decision directs the district court to issue an order restoring the Fellowship of Christian Athletes’ recognition as an approved student club. It’s unclear whether the order will have broader implications, or if the school district will settle the lower court case in light of the appellate court’s decision that the club would likely prevail in its argument that the district had violated its 1st Amendment rights.

The Fellowship of Christian Athletes operates thousands of clubs across the country. The organization’s “Sexual Purity” statement, according to court records, reads, “The Bible teaches that the appropriate place for sexual expression is in the context of a marriage relationship. The biblical description of marriage is one man and one woman in a lifelong commitment.”

The statement angered students and school staff, who spoke out against the club publicly, filed complaints about it with the school district and held protests outside the group’s meetings.

In addition to writing the court’s majority opinion, in which he was joined by fellow Trump appointee Judge Danielle Forrest, Lee wrote a separate, concurring opinion where he focused almost exclusively on that opposition.

Lee quoted one teacher as calling the club’s beliefs “bulls—t,” another describing evangelical Christians “as ‘charlatans’ who perpetuate ‘darkness’ and ‘ignorance,’” and another who “denigrated his own student as an ‘idiot’ for empathizing with FCA members who faced backlash from teachers and students.”

“This is not, to put it mildly, neutral treatment of religion,” Lee wrote. “More than a whiff, a stench of animus against the students’ religious beliefs pervades the Pioneer High School campus.”

Lee said that “animus” was further reason to rule against the district.

Judge Morgan Christen, an Obama appointee, dissented from Lee’s majority opinion.

Christen argued that the Fellowship of Christian Athletes’ request for relief from the appellate court should have been dismissed for lack of standing, in part because the club and its parent organization had failed to show that there were actually students at Pioneer High School who intended to lead the club this year and would therefore be injured by the district’s refusal to recognize it.

Christen wrote that her colleagues had granted relief to the club based on the merits of the underlying case, as they saw them, rather than the request for relief that was actually before them, and said they should not have done so “in a case of this magnitude.”

Christen had similarly tried to narrow the scope of the appellate court’s considerations during oral arguments earlier this month, when she said the case presented “very compelling and important issues” — but for the lower court, not the appellate court.

Stacey Leyton, an attorney for the school district, had said the same during the arguments, while the club said it did have standing and did have students who wanted to serve as leaders.

Leyton also had defended the school district’s actions more broadly, saying it applied the same antidiscrimination policy to all clubs — including by requiring them all to sign an “affirmation” attesting to the fact that they do not discriminate against other students.

Leyton said student groups are free to espouse any beliefs they want, so long as they do not exclude other students based on protected identities such as race or sexual orientation.

Lee questioned that position during the oral arguments and in his opinion.

“Suppose, then, a group of students say, ‘We’re going to form a white nationalist group to celebrate contributions of European Americans,’ but they say anybody’s welcome to join. I mean, would that group be discriminatory under the school’s policy?” Lee asked during the arguments.

“That group would not be violating the district’s policy of allowing all students to be members or leaders,” Leyton said. She started to add that the district might still investigate complaints that such a club was discriminating against Black students, but Lee interjected.

“That to me seems, you know, shocking,” he said. “Is this truly a nondiscriminatory policy if a white nationalist group is allowed?”

Leyton said the school district “may disapprove of the beliefs of numerous student groups,” but such disapproval “doesn’t matter” if the groups sign the affirmations and let all other students join as members and leaders.

In his opinion Monday, Lee wrote that the school district’s reliance on such “affirmations” amounted to a “formalistic litmus test” that would not serve the district’s “goal of inclusiveness,” but would penalize student groups that “are truthful about their mission and membership.”

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