A divided appellate court has ruled the San Jose School District officials discriminated against a student religious group — officials disliked the group's views on homosexuality — saying the District's "animus" against religion was "shocking."
However, a dissenting judge decried the appellate ruling as "flying in the face of judicial restraint."
The recent decision was written by Circuit Judge Consuelo Callahan, with concurrence from Circuit Judge Danielle Forrest, of the U.S. Court of Appeals for the Ninth Circuit. Judges Milan Smith Jr. and Jennifer Sung partially partially dissented, and Chief Judge Mary Murguia fully dissented.
U,S. Ninth Circuit Court of Appeals Judge Consuelo Callahan
The majority decision favored Fellowship of Christian Athletes (FCA) in its dispute with the San Jose Unified School District Board of Education. The FCA is a ministerial organization geared to promoting evangelical Christianity among students from middle school to college.
An FCA chapter at Pioneer High School in San Jose had been recognized for 20 years by school officials, until a teacher, Peter Glasser, made an issue in 2019 of FCA's requirement that chapter officers uphold the position that sex is only proper in a marriage between a man and a woman. Glasser described this view as "bullshit" and having "no validity," according to court papers. Glasser told LGBTQ+ students their "dignity" must be "defended by the adults around you."
Eventually, the School District determined the FCA could not require the chapter officers to embrace the FCA's view of sexuality. As a consequence, the District revoked the chapter's status as an official club. In 2020 in federal district court, the FCA and two FCA chapter members sued the school board and other school officials, claiming the FCA members' constitutional rights had been violated.
U.S. District Judge Haywood Gilliam Jr. refused to override the school district's decision, asserting the school district's policy does not "preclude religious speech but rather prohibits acts of discrimination.”
On appeal, Circuit Judge Callahan disagreed with Gilliam, ordering the school district to reinstate the FCA chapter.
"It [the District] is treating comparable secular activity more favorably than religious exercise," Callahan observed, adding, "religious animus infects the District's decision making."
Callahan pointed out the district allows the school's South Asian Heritage Club to exist, even though the club "prioritizes" acceptance of south Asian students.
"We do not in any way minimize the ostracism that LGBTQ+ students may face because of certain religious views, but the First Amendment’s Free Exercise Clause guarantees protection of those religious viewpoints even if they may not be found by many to 'be acceptable, logical, consistent, or comprehensible,'" Callahan said, quoting a 1981 U.S. Supreme Court decision.
Circuit Judge Forrest was more expressive than Callahan, saying the District's treatment of FCA was "shocking" and "at odds with bedrock principles that have guided our Republic."
Forrest continued that it was the "height of irony" the school district discriminated against FCA students in the name of preventing discrimination.
"The District is impermissibly picking and choosing which viewpoints are acceptable. The record shows that clubs the District deems 'controversial' are singled out for closer scrutiny or — in FCA’s case — outright denial" of "approval," Forrest concluded.
Forrest noted the school district had also discouraged the forming of other clubs, including a "Make America Great Again" club for supporters of former President Donald Trump and a police support club. The judge said this demonstrated the district's inconsistency in how it determines which students can form and govern their own clubs.
Forrest observed she saw the FCA case as more a matter of free speech than religious freedom.
Chief Judge Murguia, and the circuit judges who partially dissented,said they believed the majority view went too far.
"The majority hands down a sweeping opinion with no defined limiting principle that ignores our standard of review and carte-blanche adopts Plaintiffs’ version of disputed facts. The majority goes out of its way to open doors without any consideration to or discussion of what is behind them," Murguia declared.
Murguia added that the majority decision "flies in the face of judicial restraint."
Murguia found the FCA had no standing to press its case, because the FCA did not show that any would-be club planned to seek recognition during the 2020-23 school year, or would have done so if the injunction was in place, despite the district's direct decision to revoke the club's recognition.
Plaintiffs were represented by attorneys Daniel H. Blomberg, Eric S. Baxter, Nicholas R. Reaves, Abigail E. Smith and James J. Kim, of the Becket Fund for Religious Liberty, of Washington, D.C.; Kimberlee W. Colby, of Christian Legal Society of the Center for Law & Religious Freedom, Fairfax, Virginia; and Christopher J. Schweickert, of Seto Wood & Schweickert, of Pleasant Hill.
The school board was defended by: Stacey M. Leyton and Stephen Berzon, of Altshuler Berzon, of San Francisco; Richard B. Katskee and Kenneth D. Upton Jr., of Americans United for Separation of Church and State, of Washington, D.C.; Amy R. Levine and William Tunick, of Dannis Woliver Kelley, of San Francisco; and Andrea A. Brott, of Law Offices of Andrea A. Brott, of Berkeley.
Friend-of-the-court arguments were submitted by: Campus Crusade for Christ; InterVarsity Christian Fellowship/USA; Young Life; Ratio Christi; The Navigators; Interfaith Alliance Foundation; Americans for Prosperity Foundation; Professor Luke C. Sheahan; Jewish Coalition for Religious Liberty; D.B.; Hannah Thompson; and Jacob Estell.
Other arguments were submitted by: Professor Michael W. McConnell; Foundation for Individual Rights and Expression; Cardinal Newman Society; Christian Medical & Dental Associations; National Women’s Law Center; California School Boards Association; Chi Alpha; Robertson Center for Constitutional Law; and 23 state governments.