Fellowship of Christian Athlet v. San Jose Unified School Distri ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELLOWSHIP OF CHRISTIAN No. 22-15827
ATHLETES, an Oklahoma
corporation; FELLOWSHIP OF D.C. No.
CHRISTIAN ATHLETES OF PIONEER 4:20-cv-02798-
HIGH SCHOOL, an unincorporated HSG
association; CHARLOTTE KLARKE;
ELIZABETH SINCLAIR,
Plaintiffs-Appellants, OPINION
v.
SAN JOSE UNIFIED SCHOOL DISTRICT
BOARD OF EDUCATION; NANCY
ALBARRAN, in her official and
personal capacity; HERB ESPIRITU, in
his official and personal capacity;
PETER GLASSER, in his official and
personal capacity; STEPHEN
MCMAHON, in his official and
personal capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted August 9, 2022
Seattle, Washington
2 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
Filed August 29, 2022
Before: Morgan Christen, Kenneth K. Lee, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Lee;
Concurrence by Judge Lee;
Dissent by Judge Christen
SUMMARY *
Civil Rights
The panel reversed the district court’s denial of a motion
for a preliminary injunction sought by a derecognized
student club, the Fellowship of Christian Athletes, and
directed the district court to enter an order reinstating the
Fellowship as a student club within the San Jose Unified
School District.
The Fellowship of Christian Athletes (“FCA”) requires
students serving in leadership roles to abide by a Statement
of Faith, which includes the belief that sexual relations
should be limited within the context of a marriage between
a man and a woman. The San Jose Unified School District
(the “School District”) revoked FCA’s status as an official
student club at its high schools, claiming that FCA’s
religious pledge requirement violated the School District’s
non-discrimination policy.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 3
The panel first held that FCA National had direct
organizational standing and Pioneer High School FCA had
representational organizational standing to seek prospective
injunctive relief. The School District’s denial of Associated
Student Body (“ASB”) recognition hampered FCA
National’s ability to further student-engagement with the
Christian faith and required it to expend significant time and
resources to assist its student members. Pioneer High School
FCA had standing to pursue injunctive relief on behalf of its
student members given that defendants admitted that
submitting an ASB application would be futile under the
current policy and plaintiffs submitted declarations showing
that Pioneer High School students intended to apply for
recognition in the coming year.
Addressing the merits, the panel first held that plaintiffs’
motion for a preliminary injunction sought to maintain the
status quo that existed before the School District’s novel
scrutiny of FCA—a prohibitory injunction—so the district
court erred in applying the heightened standard for
mandatory injunctions.
The panel held that plaintiffs would likely prevail on the
merits of its selective enforcement claim under the Free
Exercise Clause. The panel stated that this 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. While this clash of values may
pose a difficult policy choice, the legal outcome was much
more straightforward based on the record. 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 School District engaged in selective
4 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
enforcement of its own non-discrimination policy,
penalizing FCA while looking the other way with other
secular student groups that maintained facially
discriminatory membership criteria. For example, the
School District blessed student clubs whose constitutions
limited membership based on gender identity or ethnicity,
despite the school’s policies barring such restricted
membership. Plaintiffs presented clear evidence that the
School District selectively applied its policy against FCA
because FCA requires its student leaders to abide by its
statements of belief. That means that the School District’s
policies were not generally applicable or neutral, triggering
strict scrutiny, a standard the School District could not meet.
Concurring, Judge Lee wrote separately to highlight the
depth of animus against the students’ religious beliefs that
pervaded the Pioneer High School campus and to explain
why it was yet another reason why the School District
violated the Free Exercise Clause.
Dissenting, Judge Christen stated that in light of the
posture of this case, controlling precedent required dismissal
of plaintiffs’ appeal for lack of Article III standing. In their
haste to reach the merits of this dispute, plaintiffs urged the
court to resolve fact-laden questions relevant only to their
claims for past injuries, not to the prospective ones at the
center of their motion for a preliminary injunction. Rather
than requiring declarations of the sort called for by Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992), Sierra Club
v. Morton, 405 U.S. 727, 735 (1972) and Summers v. Earth
Island Inst., 555 U.S. 488, 492–93 (2009), the court accepted
counsel’s unsupported assurances that a student intends to
apply for ASB status for the 2022–23 school year. It also
selectively reviewed the record. Both the Supreme Court
and this circuit have dismissed multiple claims for lack of
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 5
standing where would-be litigants presented far more
concrete and specific plans than the conclusory and
unsupported declarations offered by plaintiffs. If courts are
to apply the law evenly and fairly, the panel should have
dismissed this appeal.
COUNSEL
Daniel H. Blomberg (argued), Eric S. Baxter, Nicholas R.
Reaves, Abigail E. Smith, and James J. Kim, Becket Fund
for Religious Liberty, Washington, D.C.; Kimberlee Wood
Colby, Center for Law & Religious Freedom, Springfield,
Virginia; Christopher J. Schweickert, Seto Wood &
Schweickert LLP, Pleasant Hill, California; for Plaintiffs-
Appellants.
Stacey M. Leyton (argued) and Stephen Berzon, Altshuler
Berzon LLP, San Francisco, California; Amy R. Levine,
Dannis Woliver Kelley, San Francisco, California; Richard
B. Katskee and Kenneth D. Upton Jr., Americans United for
Separation of Church and State, Washington, D.C.; for
Defendants-Appellees.
Christopher E. Mills, Spero Law LLC, Charleston, South
Carolina, for Amici Curiae Campus Crusade for Christ Inc.,
Intervarsity Christian Fellowship/USA, Young Life, Ratio
Christi, and The Navigators.
Eduardo E. Santacana, Wilkie Farr & Gallagher LLP, San
Francisco, California; Kathryn Joseph, Director of Policy &
Advocacy, Interfaith Alliance Foundation; for Amicus
Curiae Interfaith Alliance Foundation.
6 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
Michael G. Schietzelt Jr., Robertson Center for
Constitutional Law, Regent University School of Law,
Virginia Beach, Virginia, for Amicus Curiae Robertson
Center for Constitutional Law.
Cynthia Fleming Crawford and Casey Mattox, Americans
for Prosperity Foundation, Arlington, Virginia, for Amicus
Curiae Americans for Prosperity Foundation.
Howard Slugh, Jewish Coalition for Religious Liberty,
Washington, D.C., for Amicus Curiae Jewish Coalition for
Religious Liberty.
Keisha T. Russell, Kelly J. Shackleford, Jeffrety C. Mateer,
and David J. Hacker, First Liberty Institute, Plano, Texas;
Kayla A. Toney, First Liberty Institute, Washington, D.C.;
for Amici Curiae D.B., Hannah Thompson, and Jacob Estell.
Kathleen L. Smithgall, Assistant Solicitor General; David
M.S. Dewhirst, Solicitor General; Austin Knudsen, Attorney
General of Montana; Montana Department of Justice,
Helena, Montana; Steve Marshall, Alabama Attorney
General; Leslie Rutledge, Arkansas Attorney General; Mark
Brnovich, Arizona Attorney General; Ashley Moody,
Florida Attorney General; Christopher M. Carr, Georgia
Attorney General; Todd E. Rokita, Indiana Attorney
General; Derek Schmidt, Kansas Attorney General; Daniel
Cameron, Kentucky Attorney General; Jeff Landry,
Louisiana Attorney General; Eric S. Schmitt, Missouri
Attorney General; Lynn Fitch, Mississippi Attorney
General; Doug Peterson, Nebraska Attorney General; John
M. O’Connor, Oklahoma Attorney General; Alan Wilson,
South Carolina Attorney General; Ken Paxton, Texas
Attorney General; Sean D. Reyes, Utah Attorney General;
Jason S. Miyares, Virginia Attorney General; Patrick
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 7
Morrisey, West Virginia Attorney General; for Amici Curiae
State of Montana and 18 Other States.
Anthony J. Dick and Harry S. Graver, Jones Day,
Washington, D.C., for Amicus Curiae Professor Michael W.
McConnell.
Ronald G. London, Foundation for Individual Rights and
Expression, Washington, D.C., for Amicus Curiae
Foundation for Individual Rights and Expression.
Blaine H. Evanson, Gibson Dunn & Crutcher LLP, Irvine,
California; Joseph R. Rose, Gibson Dunn & Crutcher LLP,
San Francisco, California; Jun Nam, Gibson Dunn &
Crutcher LLP, Palo Alto, California; for Amici Curiae
Cardinal Newman Society and Christian Medical & Dental
Associations.
Courtney M. Dankworth, Harold W. Williford, Joshua N.
Cohen, and Isabelle M. Canaan, Debevoise & Plimpton LLP,
New York, New York; Emily Martin, Sunu Chandy, Phoebe
Wolfe, Auden Perino, and Hunter Iannucci, National
Women’s Law Center, Washington, D.C.; for Amici Curiae
National Women’s Law Center and Twenty-One Additional
Organizations.
Mark Bresee, Alyssa Ruiz de Esparza, and Juliana Duran,
Atkinson Andelson Loya Ruud & Romo, La Jolla,
California; Keith Bray, Kristin Lindgren, and Dana Scott,
California School Boards Association, West Sacramento,
California; for Amicus Curiae California School Boards
Association and its Education Legal Alliance.
8 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
OPINION
LEE, Circuit Judge:
This case pits 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.
The Fellowship of Christian Athletes (FCA) requires
students serving in leadership roles to abide by a Statement
of Faith, which includes the belief that sexual relations
should be limited within the context of a marriage between
a man and a woman. The San Jose Unified School District
(the “School District” or “District”) revoked FCA’s status as
an official student club at its high schools, claiming that
FCA’s religious pledge requirement violates the School
District’s non-discrimination policy.
While this clash of values may pose a difficult policy
choice, the legal outcome is much more straightforward
based on the record before us. 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 School District engaged in selective enforcement of
its own non-discrimination policy, penalizing FCA while
looking the other way with other student groups. For
example, the School District blessed student clubs whose
constitutions limited membership based on gender identity
or ethnicity, despite the school’s policies barring such
restricted membership. The government cannot set double
standards to the detriment of religious groups only.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 9
We thus reverse the district court’s denial of FCA’s
motion for preliminary injunction and direct the district court
to enter an order reinstating FCA as an official student club.
BACKGROUND
I. FCA requires its student leaders to follow its religious
beliefs.
Founded in 1954, FCA is a Christian religious ministry
with more than 7,000 student chapters at colleges, high
schools, and middle schools across the United States. FCA’s
mission is “to lead every coach and athlete into a growing
relationship with Jesus Christ and His church” by fostering
a “steadfast commitment to Jesus Christ and His Word
through Integrity, Serving, Teamwork and Excellence.”
FCA chapters routinely host religious discussions, service
projects, prayer and worship, and Bible studies.
All students—regardless of religion or any other
characteristic—are welcome to become members of FCA
and participate in FCA events. But members who want to
serve as leaders of FCA must personally affirm FCA’s
Statement of Faith and abide by FCA’s Sexual Purity
Statement. According to FCA, this leadership requirement
“is necessary because leaders fill an important spiritual role
for [the] FCA chapters,” as the “vast majority of what
student leaders do . . . consists of religious ministry and
leadership” and “the student leaders’ beliefs and conduct are
vitally important to the credibility and effectiveness of each
FCA chapter’s ministry.” One provision of the Statement of
Faith requires student leaders to affirm their belief that
sexual intimacy is only to be enjoyed within the confines of
biblical marriage:
10 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
We believe God’s design for sexual intimacy
is to be expressed only within the context of
marriage. God instituted marriage between
one man and one woman as the foundation of
the family and the basic structure of human
society. For this reason, we believe that
marriage is exclusively the union of one man
and one woman.
FCA’s Sexual Purity Statement reads:
God desires His children to lead pure lives of
holiness. 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.
While upholding God’s standard of holiness,
FCA strongly affirms God’s love and
redemptive power in the individual who
chooses to follow Him. FCA’s desire is to
encourage individuals to trust in Jesus and
turn away from any impure lifestyle.
No student is explicitly excluded from leadership because of
their sexuality. For example, a student who is attracted to
members of the same sex would still be eligible for
leadership if they agree to abide by the Statement of Faith.
II. The School District revokes FCA’s recognition as an
official club.
The School District officially recognizes and supports
student organizations through its Associated Student Body
(ASB) program. The ASB program provides students with
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 11
“practice in self-governance”; offers “social and recreational
activities”; “honor[s] outstanding student achievement”; and
“enhance[s] school spirit and student sense of belonging.”
Each fall, student-run clubs must apply for ASB recognition
at their local school. ASB recognition provides several
important benefits. Only ASB-approved clubs are
(1) included on their school’s official club lists and
yearbook, which are key recruitment tools; (2) allowed to
conduct fundraisers both on and off campus and deposit and
withdraw these funds within ASB-provided bank accounts;
(3) provided an official faculty advisor; and (4) given
priority access to on-campus meeting space. A wide range
of student clubs have been approved by the ASB program,
including Bachelor Nation, Communism Club, Girls Who
Code, Mermaids Club, Persian Club, Shrek Club, and The
Satanic Temple Club.
Since the early 2000s, FCA clubs have been ASB-
approved at three School District high schools. During that
time, no student had ever complained to the School District
that FCA’s Statement of Faith had prevented them from
seeking a leadership position within FCA. Nor has any
student complained about feeling excluded because of
FCA’s religious beliefs. And school officials have
recognized that “FCA does great things on campus” and is
led by “great students.” For almost two decades, FCA
enjoyed the benefits of being an ASB-recognized student
club without controversy.
But that all changed in April 2019 when Pioneer High
School students gave their social studies teacher, Peter
Glasser, a copy of an FCA Statement of Faith and Sexual
12 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
Purity Statement. 1 The statement professed that “[t]he Bible
is clear in teaching on sexual sin including sex outside of
marriage and homosexual acts. Neither heterosexual sex
outside of marriage nor any homosexual act constitute an
alternative lifestyle acceptable to God.” It further required
FCA officers to affirm: “I understand that if I am found being
involved in a lifestyle that does not conform to FCA’s Sexual
Purity Statement . . . I will need to step down from my
leadership position with the Fellowship of Christian
Athletes.”
“[A]s the adult in the room,” Glasser felt that he “had to
react right away to the National FCA’s viewpoints.” So, the
next morning, Glasser hung the FCA Statement of Faith and
Sexual Purity Statement on his classroom whiteboard and
wrote that he was “deeply saddened that a club on Pioneer’s
campus asks its members to affirm these statements.” He
made this public display without “tak[ing] time to determine
who the [FCA] officers were” or “if any would . . . be
walking into [his] room that day.”
As it turns out, two FCA officers were in Glasser’s first
period class and were “insulted” and deeply hurt to be
publicly shamed by their teacher without so much as a
private conversation beforehand. And because Glasser
“react[ed] right away,” he “mistakenly wrote on the board
. . . that the FCA requires its members to affirm” the
Statement of Faith and Sexual Purity Statement, when only
leaders must do so.
A week later, Glasser forwarded this copy of the FCA
Statement of Faith and Sexual Purity Statement in an email
1
FCA alleges that the Purity Statement was used by a different FCA
region but not for the Pioneer FCA chapter.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 13
to Pioneer’s principal, Herbert Espiritu, highlighting his
concerns about FCA. Separately, Glasser explained to
Espiritu and others that two of FCA’s stances particularly
troubled him: (1) “God approves only of relationships
between one man and one woman,” and (2) “God assigns our
gender identities at birth based on the physical parts He gives
us.” According to Glasser, these “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.” And Glasser
“object[ed] strenuously to the ‘love the sinner, hate the sin’
mentality” held “by some Christians,” which conflicted with
“[his] truth . . . [that] being LGBTQ+ is not a choice, it’s not
a sin.”
The key question for Glasser was “whether the national
FCA’s views belong on a public high school campus”
because, if allowed, “there is an implicit message that
Pioneer as an institution approves of these values.”
Glasser’s answer to that question was emphatically “no.” He
explained to Principal Espiritu that “attacking these views is
the only way to make a better campus.” Glasser believed
that “there’s only one thing to say that will protect our
students who are so victimized by religious views”:
I am an adult on your campus, and these
views are bullshit to me. They have no
validity. It’s not a choice, and it’s not a sin.
I’m not willing to be an enabler for this kind
of “religious freedom” anymore. LGBTQ+
kids, you deserve to have your dignity
defended by the adults around you.
The next day, Pioneer’s “Climate Committee”—a school
leadership council led by Principal Espiritu and comprised
14 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
of the school’s department chairs—convened to address the
FCA controversy. Glasser was on the committee as the
social studies department chair. And Michelle Bowman,
another teacher and member of the Climate Committee,
shared Glasser’s negative views of FCA. In an email she
later sent to a student in November 2020, she wrote:
Even with the Biden win, millions of people
voted for the real devil. And, evangelicals,
like FCA, are charlatans and not in the least
bit Christian based or they “conveniently”
forget what tolerance means . . . They choose
darkness over knowledge and they perpetuate
ignorance.
Principal Espiritu agreed with the concerns raised about
FCA, believing that the statement that FCA student leaders
are required to sign “goes against core values of [Pioneer
High School] (inclusive, open-mindedness),” and that the
Committee “need[s] to take a united stance.” Principal
Espiritu escalated the concerns about FCA to the School
District administrators, and FCA was derecognized as an
ASB club. The School District concluded that FCA’s
Statement of Faith and Sexual Purity Statement that had
been provided to Glasser violated the School District’s
“Non-Discrimination Policy” because “a student could not
be an officer of this club, if they were homosexual,” which
constituted discrimination based on sexual orientation. The
Non-Discrimination Policy provides:
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
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 15
perceived ethnic group, religion, gender,
gender identity, gender expression, color,
race, ancestry, national origin, and physical
or mental disability, age or sexual
orientation.
Two days after the Climate Committee meeting,
Principal Espiritu informed Pioneer FCA’s student
leadership that the School District was immediately
stripping the club of ASB approval. The school newspaper
reported that the “Climate Committee and district officials
made the decision to revoke [ASB] status from the FCA.”
Principal Espiritu was quoted as explaining that FCA’s
purity pledge “is of a discriminatory nature” and Pioneer
“decided that we are no longer going to be affiliated with
them.”
FCA’s derecognition was unusual. In fact, FCA was the
first club in the School District to ever lose ASB recognition.
Typically, Pioneer administrators would check ad hoc
whether ASB clubs complied with the School District’s
Non-Discrimination Policy. As Pioneer’s ASB Activities
Director, Michelle Mayhew, explained, Pioneer
administrators “generally deal[t] with these issues if they
c[a]me up, if we hear[d] about them.” If a club already had
been recognized, Mayhew would generally not investigate
whether the club’s policies aligned with the Non-
Discrimination Policy.
This ad hoc enforcement meant that other student clubs
retained ASB recognition despite having membership—not
just leadership—criteria that excluded groups of students in
violation of the Non-Discrimination Policy. For example,
Big Sisters/Little Sisters was approved despite its
constitution limiting membership to female students. But
16 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
unlike with FCA, Mayhew never received any complaints
from students or teachers about gender-limited clubs, so they
maintained official status. 2
III. FCA continues as a non-recognized group for the
2019–20 school year.
After being stripped of its ASB status in May 2019,
Pioneer FCA was again denied ASB recognition for the
2019–20 school year. But Pioneer’s presence on campus
remained a problem for some school officials. Over the
summer, Glasser sent an email to Principal Espiritu,
questioning whether FCA’s views violated the School
District’s sexual harassment policy. According to Glasser,
it was “fair to argue” that FCA’s “policies on homosexuality
and gender identity” create “a hostile work environment for
students and faculty.” And Glasser then wondered whether
the school could “ban FCA completely from campus” for
violating the School District’s sexual harassment policy.
Come fall, Glasser still had his sights fixed on FCA.
Before the Climate Committee’s first meeting of the school
2
The school’s selective enforcement of the All-Comers Policy was
apparent during the deposition of Mayhew, who helps enforce it:
Q. So, for this coming school year, could Girls Who
Code still limit their membership to students who
identify as female?
A. Yes.
Q. And, could the Girls’ Circle, the same club we were
discussing earlier, still limit their membership to
students who are female identifying?
A. Yes.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 17
year, Glasser emailed the committee expressing his
“eager[ness] . . . for the committee to talk about next steps
[regarding FCA].” Apparently, Glasser was still intent on
exploring whether the School District’s “sexual harassment
policy could be used in this situation” and was “an avenue
[the Climate Committee] could pursue!”
Another history teacher, Danni McConnell—who was a
faculty advisor to the ASB-approved club, Gay-Straight
Alliance (GSA)—lamented that it was “unfortunate that
there is an organization on campus” that propounds a
“hurtful message.” McConnell urged students to “rally[]
against the issue” to “create change” on campus. And rally
they did. Every FCA meeting during the 2019–20 school
year was protested by Pioneer students. These protests were
attended by GSA’s other faculty advisor, Chanel Sulc. Sulc
claimed the students were trying “to create a safer and more
accepting community for all students, which necessitates
that FCA not hold events on campus or reassess their purity
statement and statement of faith.” During one such protest,
GSA members tried to enter an FCA meeting, but were
blocked by a school police officer.
At one FCA meeting, reporters from the school
newspaper took rapid-fire photos of every student that talked
at the meeting, sticking the camera about five feet from FCA
members’ faces. When another student reporter “fe[lt] bad”
about the newspaper’s treatment of FCA, the paper’s faculty
advisor, Jason Goldman-Hall, referred to that student as an
“idiot reporter.”
IV. FCA and several students sue the School District.
Because of the COVID-19 pandemic, student club
activities ceased in spring 2020 and did not recommence
until April 2021. And for the 2020–21 school year, Pioneer
18 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
granted all student clubs, including FCA, conditional ASB
approval.
In the thick of the COVID-induced lull in student
activities on campus, two Pioneer FCA student leaders and
FCA National filed suit against the School District and
several of its officials, including Principal Espiritu and Peter
Glasser, in April 2020. The two student leaders, Charlotte
Klarke and Elizabeth Sinclair, had first sued under their
initials to avoid harassment, but the School District sought
the public disclosure of their identities. The district court
agreed, ruling that “harassment at their high school ended
when [they] graduated in June 2020.”
In January 2021, the district court granted in part the
defendants’ motion to dismiss. Undeterred, Klarke, Sinclair,
FCA National, and Pioneer FCA filed in July 2021 their third
amended complaint, the operative pleading here. The
plaintiffs alleged that the defendants violated their right 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
Protection under the Fourteenth Amendment. Then, on July
30, 2021, the plaintiffs filed a motion for a preliminary
injunction “requiring Defendants to restore recognition to
student chapters affiliated” with National FCA, including
Pioneer FCA, “as official [ASB] approved student clubs.”
The defendants again moved to dismiss in part, arguing that
all plaintiffs lack standing to pursue injunctive relief. This
motion to dismiss remains pending before the district court.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 19
V. The School District adopts an “All-Comers Policy”
for the 2021–22 school year.
Amid the ongoing litigation, the School District issued a
set of new “Student Organization Guidelines” to govern
ASB clubs for the 2021–22 school year. According to
School District officials, this new guidance was
implemented in response to the Pioneer FCA controversy
and the need for more staff training on student club
membership requirements. Central to the District’s new
ASB guidelines was the newly minted “All-Comers Policy.”
This policy has the same purpose as the Non-Discrimination
Policy but uses somewhat different language. It requires that
ASB-recognized clubs:
Allow any currently enrolled student of the
school to participate in, become a member of,
and seek or hold leadership positions in the
organization, regardless of his or her status or
beliefs. 3
This policy ensures that all School District “campus
communities continue to be welcoming to all students” and
that every student is provided an “equal opportunity” to
participate in “District programs and activities.” When
applying for ASB recognition, all leaders of student groups
are now required to sign an affirmation form agreeing to
comply with the All-Comers Policy and submit a
standardized club application form that includes a provision
3
The guidelines state that the All-Comers Policy is to “be
implemented and construed in accordance with the all comers policy” in
Christian Legal Society v. Martinez, 561 U.S. 661 (2010).
20 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
requiring the club to affirm that it will abide by the All-
Comers Policy to keep its ASB recognition.
But the new ASB guidelines permit student
organizations to “adopt non-discriminatory criteria” for
membership and leadership, “such as regular attendance at
group meetings, participation in group events, participation
in the group for a minimum period of time, or participation
in orientation or training activities.” Apart from these
examples, the guidelines do not define what constitutes a
“non-discriminatory criteria.” Rather, school officials
(either the school’s Activities Director, or the principal if
necessary) will rely on “common sense.” The only “bright-
line criteria” are found in the School District’s Non-
Discrimination Policy. For example, a club could not
prevent a woman from being president because that would
be gender discrimination.
Despite the All-Comers Policy, the Senior Women of
Leland High School was approved as an ASB-recognized
club for the 2021–22 school year, even though its
constitution limited membership to female-identifying
students. Mayhew, Pioneer’s Activities Director, also
acknowledged that other groups could limit their
membership. She noted that the Republican student club
could become ASB approved even if it required “club
leaders . . . to support the Republican platform,” and the
Interact club could continue to require its members and
leaders to “demonstrate good moral character or show
leadership ability.”
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 21
VI. The School District confirms that FCA would still
not be recognized as an ASB club under the All-
Comers Policy.
FCA did not apply for recognition at any School District
high school during the 2021–22 school year. According to
Rigoberto Lopez (the Metro Director for FCA in the Bay
Area and advisor to FCA students there), student leaders at
Pioneer High School would have applied for ASB
recognition but for the requirement that they agree with the
All-Comers Policy. Complying with the All-Comers Policy
would have in effect prohibited FCA from “select[ing]
leaders based on their agreement with the club’s faith.”
The students correctly believed that applying for ASB
recognition would have been futile. According to School
District officials, FCA’s Statement of Faith violates the All-
Comers Policy. First, requiring leaders to “affirm a belief in
Christianity” excludes students of other faiths or non-
religious students. Second, requiring leaders to “affirm that
marriage is exclusively the union of one man and one
woman” excludes “homosexual students or those who
affiliate with homosexual parents.” Principal Espiritu also
confirmed that FCA would be denied ASB recognition if
they maintained their leadership requirements.
VII. The district court denies FCA’s preliminary
injunction request.
In June 2022, the district court denied the plaintiffs’
motion for a preliminary injunction after discovery had
closed in the case. Applying the “heightened standard”
required for issuance of a “mandatory preliminary
injunction,” the district court concluded that plaintiffs failed
to show that the “facts and law clearly favor” their position
such that they are likely to succeed on the merits.
22 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
First, the district court held that the All-Comers Policy,
as written, was unlikely to violate the plaintiffs’ rights.
According to the district court, the All-Comers Policy likely
does not run aground of the EAA: it “is content-neutral
because it does not preclude religious speech but rather
prohibits acts of discrimination” and “has a ‘non-pretextual’
purpose.” The district court, applying “limited public
forum” analysis to the plaintiff’s speech and association
claims, concluded that the All-Comers Policy “is reasonable
in light of the ASB program’s purposes and is viewpoint and
content neutral.” The plaintiffs thus were unlikely to prevail
on these claims. And the court further held that plaintiffs
were unlikely to prevail on their Free Exercise claim because
the Policy is generally applicable, “does not treat
comparable secular activity more favorably than religious
exercise,” and only incidentally burden’s their exercise of
religion.
Next, the district court rejected the plaintiffs’ arguments
that the All-Comers Policy, as applied, violates their rights.
The plaintiffs argued that the policy has been selectively
enforced because the School District “has approved
numerous student group applications that discriminate on
one or more of the criteria listed in its non-discrimination
policy.” But the district court found that the plaintiffs’
evidence, though “arguably [in] some tension” with the All-
Comers Policy, did not establish that “any club [besides
FCA] discriminates in violation of the Policy” or has
“refused to sign the ASB Affirmation Form.” Moreover, the
district court held that the All-Comers Policy does not
impermissibly allow for discretionary exceptions because
the School District may not permit any club to discriminate
based on a protected characteristic enumerated in the Non-
Discrimination Policy.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 23
STANDARD OF REVIEW
We review the district court’s denial of a preliminary
injunction for an abuse of discretion. See Porretti v.
Dzurenda, 11 F.4th 1037, 1046 (9th Cir. 2021). “A district
court abuses its discretion . . . if it bases its decision on an
erroneous legal standard or clearly erroneous findings of
fact.” Earth Island Inst. v. Carlton, 626 F.3d 462, 468 (9th
Cir. 2010). “The district court’s interpretation of the
underlying legal principles . . . is subject to de novo review.”
Southwest Voter Registr. Educ. Project v. Shelley, 344 F.3d
914, 918 (9th Cir. 2003) (en banc). The district court’s
factual findings are clearly erroneous if they are “illogical,
implausible, or without support in the record.” United States
v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).
DISCUSSION
I. Article III Standing
In the district court, the defendants moved to dismiss in
part, arguing that all plaintiffs lack standing to seek
injunctive relief. This motion remains pending. “Even
though the district court has not yet ruled on standing, ‘we
must consider it because it governs our jurisdiction as well.’”
Yazzie v. Hobbs, 977 F.3d 964, 969 n.5 (9th Cir. 2020) (per
curiam) (quoting City of S. Lake Tahoe v. Cal. Tahoe Reg’l
Plan. Agency, 625 F.2d 231, 233 (9th Cir. 1980)).
Klarke and Sinclair’s requests for prospective injunctive
relief were previously dismissed as moot when they
graduated from Pioneer High School. We thus limit our
inquiry to only whether either FCA National or Pioneer FCA
has standing. Nat’l Ass’n of Optometrists & Opticians
Lenscrafters, Inc. v. Brown, 567 F.3d 521, 523 (9th Cir.
2009) (“[I]n an injunctive case this court need not address
24 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
standing of each plaintiff if it concludes that one plaintiff has
standing.”).
“[S]tanding requires that (1) the plaintiff suffered an
injury in fact, i.e., one that is sufficiently concrete and
particularized and actual or imminent, not conjectural or
hypothetical, (2) the injury is fairly traceable to the
challenged conduct, and (3) the injury is likely to be
redressed by a favorable decision.” Bates v. United Parcel
Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (quoting Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)) (internal
quotation marks omitted). To bring a claim for prospective
injunctive relief, “[t]he plaintiff must demonstrate that he
has suffered or is threatened with a concrete and
particularized legal harm, coupled with a sufficient
likelihood that he will again be wronged in a similar way.”
Id. (internal quotation marks and citations omitted).
“[P]laintiffs may demonstrate that an injury is likely to
recur by showing that the defendant had . . . a written policy,
and that the injury ‘stems from’ that policy. Where the harm
alleged is directly traceable to a written policy[,] there is an
implicit likelihood of its repetition in the immediate future.”
Truth v. Kent Sch. Dist., 542 F.3d 634, 642 (9th Cir. 2008)
(quoting Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d
1075, 1081 (9th Cir. 2004)), overruled on other grounds by
Los Angeles County v. Humphries, 562 U.S. 29 (2010).
A. FCA National has direct organizational standing.
An organization has “direct” standing to sue in its own
right if it alleges “a personal stake in the outcome of the
controversy as to warrant [its] invocation of federal-court
jurisdiction.” Sabra v. Maricopa Cnty. Cmty. Coll. Dist.,
No. 20-16774, 2022 U.S. App. LEXIS 22119, at *20–21 (9th
Cir. Aug. 10, 2022) (quoting Havens Realty Corp. v.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 25
Coleman, 455 U.S. 363, 378–79 (1982)). The organization
must establish “that the defendant’s behavior has frustrated
its mission and caused it to divert resources in response to
that frustration of purpose.” E. Bay Sanctuary Covenant v.
Biden, 993 F.3d 640, 663 (9th Cir. 2021). “Although
organizations cannot ‘manufacture the injury by incurring
litigation costs or simply choosing to spend money fixing a
problem that otherwise would not affect the organization at
all,’ they can establish standing by showing that they ‘would
have suffered some other injury’ had they ‘not diverted
resources to counteracting the problem.’” Sabra, 2022 U.S.
App. LEXIS 22119, at *21–22 (quoting E. Bay Sanctuary,
993 F.3d at 663). For example, in Sabra we held that a
nonprofit organization “committed to advocacy and
protecting the civil rights of American Muslims” had
standing to bring a First Amendment challenge against
allegedly Islamophobic course materials taught by a
community college professor because the organization “had
to divert its resources to create a campaign correcting the
Islamophobic information,” which required contracting with
a religious scholar to develop materials for the campaign. Id.
at *22–24.
FCA’s mission is “to lead every coach and athlete into a
growing relationship with Jesus Christ and His church.”
FCA’s local student chapters are the primary way the
organization increases student engagement with
Christianity. With ASB recognition, FCA would be
included in the school yearbook and official club list, would
be able to fundraise on and off campus, and would have
priority access to campus space for hosting events. By
denying these benefits, the School District has hampered
FCA’s ability to further student-engagement with the
Christian faith. We thus conclude that the School District’s
26 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
denial of ASB recognition has and continues to frustrate
FCA National’s mission.
FCA National has also had to devote a “huge amount of
staff time, energy, effort, and prayer that would normally
have been devoted to preparing for school or ministry” to
“support the FCA student leaders” after FCA’s
derecognition. For example, Rigoberto Lopez from FCA
National has spent significant time “communicating with
District officials to explain FCA’s stances,” and FCA has
spent “over $10,000” preparing “correspondence to the
District to inform it of students’ rights under the First
Amendment and Equal Access act.” “Diverted staff time is
a compensable injury” when it is “caused by the [challenged
government action].” Pac. Shores Props., LLC v. City of
Newport Beach, 730 F.3d 1142, 1166 (9th Cir. 2013); see
also Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th
Cir. 2002) (holding that an organizational plaintiff had
standing because it “showed a drain on its resources” caused
by combating housing violations). Because FCA National
has had to devote significant time and resources to assist its
student members because of derecognition, we hold that it
has organizational standing.
B. Pioneer FCA has representational organizational
standing.
Organizations also have standing to bring suit on behalf
of their members if “(1) at least one of its members would
have standing to sue in his own right, (2) the interests the suit
seeks to vindicate are germane to the organization’s purpose,
and (3) neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.” Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d
1100, 1105–06 (9th Cir. 2006). The defendants do not
dispute the second and third prongs, and we conclude that
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 27
they are satisfied. The defendants, however, maintain that
none of Pioneer FCA’s student members have standing to
sue.
The plaintiffs argue that Pioneer FCA’s student leaders
are likely to suffer harm because any future application for
ASB recognition during the 2022–23 school year will be
denied. The defendants admit that submitting an ASB
application would be futile under the current policy. See
Truth, 542 F.3d at 642; see also Taniguchi v. Schultz, 303
F.3d 950, 957 (9th Cir. 2002) “(We have consistently held
that standing does not require exercises in futility.”). Still,
the defendants argue that the plaintiffs cannot establish a
“real and immediate threat of repeated injury” because “no
students applied for recognition of an FCA club” during the
2021–22 school year, and “there is no evidence that any
students intend to seek ASB recognition in fall 2022.”
We disagree. Rigoberto Lopez, FCA National’s student
advisor, submitted multiple declarations showing that
Pioneer students intend to apply for recognition. The second
declaration from September 2021 identifies four Pioneer
students—M.H., N.M., M.C., and M.V.—who “confirmed
that they plan[ned] to either lead or continue their
membership in Pioneer FCA in the coming year.” Lopez
also declares that “Pioneer FCA’s leadership will apply for
ASB recognition” if an injunction is granted. In the third
declaration from May 2022, Lopez discussed FCA’s “plans
to grow the group during the 2022–23 school year” and that
“the club confirmed . . . Pioneer FCA’s leadership for the
2022–23 school year,” which includes N.M. Thus, at least
one of Pioneer FCA’s student leaders for the 2022–23 school
year, N.M., has stated an intention to apply for ASB
recognition if an injunction is granted.
28 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
The dissent, however, claims the declarations are
deficient because the “most recent declaration says nothing
at all about whether N.M. intends to apply for ASB
recognition for the upcoming 2022–23 school year.” But we
should not review each declaration in isolation, ignoring that
N.M. earlier indicated his/her intent to apply for ASB
recognition. We are unpersuaded that the plaintiffs were
required to restate the obvious, especially where First
Amendment rights are threatened. See LSO, Ltd. v. Stroh,
205 F.3d 1146, 1155 (9th Cir. 2000) (“[W]hen the threatened
enforcement effort implicates First Amendment rights, the
inquiry tilts dramatically toward a finding of standing.”). 4
Additionally, the defendants dismiss the Lopez
declarations as “hearsay and speculation,” and criticize the
plaintiffs for not providing “evidence from actual students,
who are the only ones who may apply for ASB recognition.”
4
The dissent also relies on several environmental standing cases to
argue that N.M.’s plans to apply for ASB recognition are too speculative.
See, e.g., Summers v. Earth Island Inst., 555 U.S. 488, 490 (2009); Lujan,
504 U.S. at 563–64; Sierra Club v. Morton, 405 U.S. 727, 735 (1972).
But these cases are readily distinguishable because the future aesthetic
harms alleged by the plaintiffs are truly speculative: they would only
occur if the plaintiffs traveled to certain wilderness areas affected by the
challenged governmental regulation at certain times. See Summers, 555
U.S. at 495–96 (plaintiff’s allegation that he “plans to visit several
unnamed national forests in the future” insufficient to confer standing
because it is unlikely that plaintiff’s “wanderings will bring him to a
parcel affected” by the challenged regulation); Lujan, 504 U.S. at 563–
64 (past travel to habitat and statement of intent to revisit habitat at some
unspecified time insufficient to show imminent injury); Sierra Club, 405
U.S. at 735 (organization lacked standing because it failed to allege that
its members use the particular wilderness area affected by the proposed
governmental actions). But here, harm is certain if Pioneer FCA applies
for ASB recognition. And we know N.M. wants to apply for recognition.
Moreover, we know when this harm will occur—on the day ASB
applications are due for the 2022-23 school year.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 29
But hearsay evidence may be considered when deciding
whether to issue a preliminary injunction. See, e.g., Republic
of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir.
1988) (en banc). And the defendants ignore the reason why
no student testimony was submitted: the parties stipulated
that, in exchange for the School District declining to depose
any non-party students, the plaintiffs would not introduce
any testimony from them. This stipulation was made to
protect N.M. and other FCA student leaders who felt
intimidated after receiving deposition notices from School
District counsel, despite not being parties or witnesses in the
litigation. The defendants cannot fault the plaintiffs for
failing to submit evidence which they agreed not to require. 5
Therefore, we also hold that Pioneer FCA has standing to
pursue injunctive relief on behalf of its student members.
II. FCA’s Motion for Preliminary Injunction
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We
evaluate “these factors on a sliding scale, such ‘that a
5
If the plaintiffs, through Lopez, had tried to submit evidence from
non-party student leaders that went to the merits of their claims, we
would be concerned that the plaintiffs would be enjoying the benefits of
the stipulation while circumventing their obligations thereunder. But
because the non-party student leaders, including N.M., have a track
record of participating in FCA from which we can infer future
participation, and because we must “sua sponte assure ourselves of [the
plaintiffs’] standing,” Interpipe Contr., Inc. v. Becerra, 898 F.3d 879,
891 n.9 (9th Cir. 2018), it is appropriate to consider the Lopez
declarations here.
30 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
stronger showing of one element may offset a weaker
showing of another.’” Recycle for Change v. City of
Oakland, 856 F.3d 666, 669 (9th Cir. 2017) (quoting All. for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.
2011)). When the balance of equities “tips sharply in the
plaintiff’s favor,” the plaintiff must raise only “serious
questions” on the merits—a lesser showing than likelihood
of success. See Wild Rockies, 632 F.3d at 1134–35; see also
Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities
Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010).
A. The district court abused its discretion by
applying the “heightened standard” for
mandatory injunctions.
To start, we need to address whether FCA seeks a
“mandatory” or a “prohibitory” preliminary injunction. That
matters because the moving party’s burden differs between
the two. “A mandatory injunction orders a responsible party
to take action, while [a] prohibitory injunction prohibits a
party from taking action and preserves the status quo
pending a determination of the action on the merits.” Ariz.
Dream Act Coal. v. Brewer, 757 F.3d 1053, 1060 (9th Cir.
2014) (internal quotation marks and citation omitted).
Mandatory injunctions are “particularly disfavored,” Marlyn
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
F.3d 873, 879 (9th Cir. 2009), and should be denied “unless
the facts and law clearly favor the moving party,” Stanley v.
University of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994)
(emphasis added) (internal quotation marks omitted).
We ask whether the plaintiffs seek to maintain or alter
the status quo. “The ‘status quo’ refers to the legally relevant
relationship between the parties before the controversy
arose.” Ariz. Dream, 757 F.3d at 1061 (emphasis in
original); see also Regents of Univ. of Cal. v. Am. Broad.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 31
Cos., 747 F.2d 511, 514 (9th Cir. 1984) (The relevant status
quo is “the last, uncontested status which preceded the
pending controversy.”) (internal quotation marks and
citation omitted)).
The district court determined that the “controversy
arose” in April 2020 when the plaintiffs filed suit. Ariz.
Dream, 757 F.3d at 1061. At that time, no FCA group had
ASB recognition at any of the schools. Because the
plaintiffs seek an injunction requiring ASB recognition, the
district court concluded that they want to alter the status quo.
In response, the plaintiffs say the “controversy arose” when
the School District derecognized FCA in May 2019. Before
then, FCA enjoyed ASB-approved status. Thus, by seeking
“resumed equal access to ASB-approved status,” they are
requesting a “return to the status quo.”
We agree with the plaintiffs. When we said that the
status quo is the “relationship between the parties before the
controversy arose,” id., we did not intend to peg the status
quo determination to the somewhat arbitrary date the lawsuit
was filed. Rather, the controversy arises when the events
forming the plaintiffs’ claim transpire, and we determine the
status quo by looking at the relationship in existence before
those events occurred.
For example, in Arizona Dream, DACA recipients
sought a preliminary injunction prohibiting Arizona officials
from enforcing the state’s new policy that prohibited them
from obtaining Arizona driver’s licenses. Id. at 1057–60.
The district court defined the status quo based on the policy
in force when the DACA plaintiffs filed suit, under which
the “Defendants did not issue driver’s licenses to Plaintiffs.”
Id. at 1061. But we held that the “district court erred in
defining the status quo” because the state’s new policy gives
rise to their claims, and the plaintiffs were eligible to receive
32 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
driver’s licenses before that policy went into effect. See id.
Thus, “[b]y revising their policy,” it was the defendants that
“affirmatively changed this status quo,” and not the
plaintiffs. Id.
Here, FCA enjoyed ASB recognition since the early
2000s. But in Spring 2019, a controversy arose when certain
Pioneer officials sought derecognition of FCA. The
plaintiffs’ claims are grounded in the series of events that
occurred during the derecognition process. And because the
plaintiffs request an injunction to remedy constitutional
violations allegedly infecting the derecognition
determination, we hold that the status quo was the ASB-
approved status enjoyed by FCA before derecognition. And
plaintiffs’ motion for a preliminary injunction seeks to
maintain this status quo that existed before the School
District’s novel scrutiny of FCA—a prohibitory
injunction—so the district court erred in applying the
heightened standard for mandatory injunctions. See Pom
Wonderful LLC v. Hubbard, 775 F.3d 1118, 1123 (9th Cir.
2014).
B. FCA will likely prevail on the merits of its
selective enforcement claim under the Free
Exercise Clause.
The Free Exercise Clause of the First Amendment
provides that “Congress shall make no law . . . prohibiting
the free exercise” of religion. U.S. CONST. amend. I. The
Free Exercise Clause “stands as a recognition that . . . divine
authority may exist and, if it exists, has a rightful claim on
the allegiance of believers who happen to be American
citizens.” Michael W. McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, 103
Harv. L. Rev. 1409, 1516 (1989). The use of the term “free
exercise” in the First Amendment—rather than “rights of
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 33
conscience” in the initial draft—“makes clear that the clause
protects religiously motivated conduct as well as belief.” Id.
at 1488.
Given this historical backdrop, the Supreme Court has
held that the government “cannot impose regulations that are
hostile to religious . . . beliefs” and “cannot act in a manner
that passes judgment upon or presupposes the illegitimacy of
religious beliefs and practices.” Masterpiece Cakeshop, Ltd.
v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1731 (2018). FCA’s
beliefs about marriage and sexuality fall within the ambit of
the First Amendment. As the Supreme Court reminded us,
“religious and philosophical objections to gay marriage are
protected views.” Id. at 1727. To be sure, some—maybe
even most—people may find such views passé. And we do
not minimize the ostracism that gay and lesbian students
may endure because of those views. But 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.” See Fulton v. City of Philadelphia,
141 S. Ct. 1868, 1876 (2021).
We apply strict scrutiny to government regulations that
burden religious exercise unless those laws are neutral and
generally applicable. See id. (citing Emp’t Div., Dep’t of
Human Res. of Or. v. Smith, 494 U.S. 872, 878–82 (1990)).
A law is not neutral and generally applicable if it is
selectively enforced against religious entities but not
comparable secular entities. See Tandon v. Newsom, 141 S.
Ct. 1294, 1296 (2021) (per curiam); Alpha Delta Chi-Delta
Chapter. v. Reed, 648 F.3d 790, 804–05 (9th Cir. 2011).
“[W]hether two activities are comparable for purposes of the
34 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
Free Exercise Clause must be judged against the asserted
government interest that justifies the regulation at issue.”
Tandon, 141 S. Ct. at 1296. Nor is a law neutral and
generally applicable if the government has discretion to
exempt secular groups from the strictures of the law. See
Fulton, 141 S. Ct. at 1877. The reason is obvious: if a
government can easily grant an exemption, then the law
stops being applied neutrally or generally. See id. Finally,
the “Government fails to act neutrally when it proceeds in a
manner intolerant of religious beliefs or restricts practices
because of their religious nature.” Id.
Under strict scrutiny, the government can prevail only if
it shows that its restrictions on religion “are justified by a
compelling interest and [are] narrowly tailored to advance
that interest.” Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 533 (1993). Given that high bar,
the defendants do not argue that their policies can pass
muster under strict scrutiny; rather, they contend that strict
scrutiny does not apply at all because their policies are
neutral and generally applicable.
But the record before us shows that the School District’s
non-discrimination policies have been, and continue to be,
selectively enforced against FCA. Other secular student
groups maintain facially discriminatory membership criteria
but enjoy ASB recognition. In short, the School District
targeted FCA because of its religious-based views about
marriage and sexuality, and not merely because of its alleged
violation of non-discrimination policies. 6
6
The plaintiffs also argue that the School District’s policies facially
violate the EAA, and their First Amendment rights of free speech,
association, and free exercise of religion. The School District responds
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 35
If the defendants selectively enforced their policies
against FCA only, then those policies are not generally
applicable or neutral. See Alpha Delta, 648 F.3d at 804–05
(concluding that evidence showed the non-discrimination
policy may have been selectively enforced where secular
student groups were granted exemptions from the policy);
Truth, 542 F.3d at 650–51 (holding that religious student
group’s allegation of selective enforcement of non-
discrimination policy presented a colorable claim). That
means we must apply strict scrutiny to the defendants’
actions—a standard under which the School District’s
policies cannot survive.
Put differently, if the School District’s policies are
selectively enforced, the plaintiffs will likely prevail on the
merits of their Free Exercise claim. And here plaintiffs have
presented evidence that the defendants selectively
enforced—and continue to selectively enforce—the Non-
Discrimination and All-Comers Policies against FCA while
exempting secular ASB student groups.
that this position conflicts with binding precedent. In Christian Legal
Society v. Martinez, the Supreme Court held that an All-Comers Policy
identical to the School District’s here did not run aground of the EAA or
the First Amendment. See 561 U.S. 661, 669 (2010). We also held that
similar non-discrimination policies do not violate the EAA or First
Amendment. See Alpha Delta, 648 F.3d at 800–01; Truth, 542 F.3d at647–50. The plaintiffs reply that our decision in Truth only approved of
non-discrimination policies as applied to student members but not its
leadership and rely on Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85
F.3d 839 (2d Cir. 1996), which held that impeding a group’s ability to
exclude non-Christians from leadership positions violated the EAA. Id.
at 859. We need not decide these issues or address the plaintiffs’ and
certain amici’s argument that intervening Supreme Court decisions have
undercut Martinez and Truth because we hold that the plaintiffs will
likely prevail on their as-applied challenges.
36 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
a. Selective enforcement of the All Comers
Policy.
The defendants argue that FCA is the only student group
that maintains discriminatory leadership or membership
criteria, so there is no evidence that the School District has
selectively enforced the All-Comers Policy against FCA.
Unrebutted evidence presented by plaintiffs belies this
assertion. The ASB-recognized Senior Women of Leland
High School maintains a discriminatory membership
criterion that violates the All-Comers Policy.
The Senior Women Club’s mission is to “connect the
school’s women with local events.” The club’s constitution
limits membership based on gender identity. Even though
the Senior Women Club explicitly stated its intention to
exclude males from membership—i.e., that they intend to
discriminate based on gender identity in violation of the All-
Comers Policy—the School District still granted it ASB
recognition. This alone shows selective enforcement by the
School District. See id. at 650 (holding that Men’s and Girl’s
Honor Clubs, which discriminate based on gender yet were
granted ASB recognition, demonstrated selective
enforcement).
To be clear, there may be very good reasons for the
Senior Women Club to have restricted membership. A
female-only group may enhance mentorship, camaraderie,
and networking for its members. But the School District’s
All-Comers policy does not carve out exceptions for
“benign” discriminatory membership rules. Cf. Adarand
Constrs. v. Pena, 515 U.S. 200, 226–27 (1995) (applying
strict scrutiny to “benign” racial classifications). Simply put,
the Senior Women Club’s constitution violates the School
District’s All-Comers policy, yet the School District
recognizes it as an ASB student club.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 37
Still, the defendants argue that the Senior Women Club’s
discriminatory membership rule should be excused because
the club agreed to comply with the All-Comers Policy when
it signed the school’s standardized club application form.
The district court charitably said that there was “arguably
some tension” between the Senior Women club’s
membership criteria and its affirmation of the All-Comers
Policy. The district court then resolved this “tension” in the
School District’s favor because the plaintiffs had not proven
that the Senior Women Club actually discriminates based on
gender identity.
The district court clearly erred. First, the Senior Women
Club’s discriminatory membership criterion and the All-
Comers Policy are not merely in “some tension.” Rather,
they are diametrically opposed to each other—only one can
be true. Either membership is open only to female students
or it is open to all students. And the club specified on the
application form required by the School District for the
2021–22 school year that its membership was open only to
“seniors who identify as female.” We fail to see how this
club can maintain its restrictive membership criteria while
complying with the All-Comers Policy.
The district court relied on the boilerplate
nondiscrimination statement in the club application form
that the Senior Women Club’s student leader signed as proof
that the club does not discriminate based on gender identity.
True, the boilerplate statement in this form does have the
School District’s required non-discrimination language in it.
But the Senior Women club modified that form twice by
handwriting in discriminatory membership conditions based
on gender identity. First, as noted above, the Senior Women
Club’s leader handwrote that only “seniors who identify as
female” can become members. To accentuate this point, she
38 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
then handwrote that a student will no longer be considered a
member if the student “is not a senior who does not identify
as female.” In other words, the Senior Women Club
modified the terms of ASB participation when it inserted its
gender-based membership conditions into its club
application form submitted for ASB approval. And when
the School District approved the Senior Women Club’s
application, it assented to the club’s discriminatory
condition. Cf. 1 Corbin on Contracts § 3.35 (2022) (“If the
party who made the prior offer expresses assent to the terms
of the counter-offer, a contract is thereby made on those
terms.”).
Whether the plaintiffs can set forth specific instances
when the Senior Women Club has discriminated against
males is irrelevant under the School District’s reasoning.
The School District has repeatedly emphasized that the mere
existence of FCA’s religious beliefs was enough to deny
ASB recognition, regardless of any affirmation to the
contrary. And according to the School District, FCA will be
denied recognition so long as it maintains its student
leadership requirements, even though there is no evidence
that FCA has ever denied a student leadership application
because the student disagreed with FCA’s statements of
belief. So, whether the Senior Women Club actually
discriminates is beside the point. The mere existence of the
Senior Women Club’s discriminatory criteria should
likewise require denying it ASB recognition. But instead,
the School District welcomed this club. 7
7
We also question whether a club’s mere affirmation that it will
follow the All-Comers Policy is in fact meaningful. For example, Big
Sisters/Little Sisters is obviously intended for female students only; it is
unclear that a male student would or should try to serve as a mentor or
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 39
The dissent criticizes us for crediting the plaintiffs’
evidence of Senior Women Club’s discriminatory
membership policy because “it is not our role to find facts.”
We agree that such fact finding would be inappropriate if
there was any real dispute that the Senior Women maintain
discriminatory membership criteria. But the School District
admits that the discriminatory criteria exists and “under the
District’s policy the . . . activities director should have
required the Senior Women Club to clarify or modify their
handwritten characterization of their members or else
disapproved the application.” We are not required to shut
our eyes to “uncontested facts” found within the record,
Fortyune, 364 F.3d at 1083.
Given this unrebutted evidence that the School District
has exempted a secular group from its All-Comers Policy,
the defendants respond by suggesting that the Supreme
Court in Fulton only banned formalized exemptions for
secular groups. Because the School District’s All-Comers
Policy provides no facial exemptions, the defendants appear
to argue that the School District’s conduct is permissible.
But this cramped and distorted reading of Fulton
misinterprets the guardrails of “neutral” and “generally
applicable” laws. While Fulton did involve formalized
seek guidance through this group. Big Sisters/Little Sisters may have
affirmed the All-Comers Policy on the School District’s form, but the
club’s name and mission is obviously gender-specific. At oral argument,
the defendants’ counsel highlighted how little the affirmation means: she
conceded that a White nationalist group would not run afoul of the
School District’s All-Comers Policy or its Non-Discrimination Policy so
long as the group signed the affirmation statement and club application
form stating that anyone could join the group. Not only does such a
formalistic litmus test fall short of serving the School District’s goal of
inclusiveness, but it appears to penalize student groups that are truthful
about their mission and membership.
40 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
exemptions to the city’s anti-discrimination policy for
placing foster care children, the Court found problematic the
discretion that the government enjoyed in exempting secular
groups while enforcing the policy against the Catholic Social
Services for its opposition to same-sex married couples.
Fulton, 141 S. Ct. at 1878. If anything, the School District’s
unspoken and ad hoc exemption practice poses a more
insidious and severe danger to the Free Exercise right than
the formalized exemptions in Fulton: It provides the School
District almost unfettered and silent discretion to make
exceptions.
In short, plaintiffs have presented clear evidence that the
School District selectively applies its All-Comers Policy
against FCA because FCA requires its student leaders to
abide by its statements of belief. That means that the School
District’s policies are not generally applicable or neutral,
triggering strict scrutiny. Tandon, 141 S. Ct. at 1296. And
that, in turn, is the ballgame. At this stage, the plaintiffs have
shown that they are likely to prevail on their selective-
enforcement claim. 8
8
We also note that the School District’s policies likely conflict with
the Supreme Court’s holding in Tandon that religious groups should be
treated the same as comparable secular groups. See, e.g., Seals v. Austin,
No. 4:21-cv-01236-O, 2022 U.S. Dist. LEXIS 65937, at *35–36 (N.D.
Tex. Mar. 28, 2022) (holding that the Navy’s COVID-19 vaccine
requirement likely violates Tandon because it “blatantly treats those who
applied for medical exemptions more favorably than” those who sought
religious exemptions). The School District allows secular student groups
to impose their own (secular-based) moral code for membership. For
example, the Interact club requires its members and leaders to
“demonstrate good moral character.” But the School District does not
allow religion-based moral requirements. The government cannot
sanction moral requirements for secular groups but ban them for
religious groups.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 41
b. Selective enforcement of the Non-
Discrimination Policy.
The School District’s refusal to apply the All-Comers
Policy against the Senior Women Club shows that the
plaintiffs will likely prevail on the merits. But this double
standard was no aberration. It has repeatedly looked the
other way when secular ASB organizations maintained
discriminatory membership and leadership criteria that
violated the School District’s policies before the All-Comers
Policy went into effect during the 2021–22 school year.
For example, Girl Talk and Big Sisters/Little Sisters
limited membership to female-identifying students, which
violated the Non-Discrimination Policy’s prohibition against
gender identity discrimination. The South Asian Club also
“prioritize[d]” members who were South Asian. Yet these
clubs retained ASB recognition because, as Pioneer’s
Activities Director admits, the school never received any
complaints from students or teachers about these gender- or
ethnicity-limited clubs.
The defendants argue that we cannot consider these past
instances of selective enforcement of the then-controlling
Non-Discrimination Policy when evaluating prospective
relief because the School District has since implemented the
“new” All-Comers Policy. We disagree. Past examples of
selective enforcement inform whether the School District is
still selectively enforcing the “new” All-Comers Policy
because these two policies are effectively one and the same.
Indeed, the School District’s counsel at oral argument
walked away from the assertion that the All-Comers Policy
is “new”: She represented that “[the All-Comers Policy] is
not a change in practice . . . and what [the School District]
was implementing in 2021 was a formalization of a long-
standing practice of the School District.”
42 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
In other words, the “new” policy is just a rebranding.
The Non-Discrimination Policy and the All-Comers Policy
are substantively identical. Based on their language, both
policies purport to bar discrimination. Both policies also
have the effect of excluding FCA from ASB while allowing
secular groups that discriminate based on protected
characteristics to maintain ASB status. And both policies
were enacted and implemented by the same School District
and Pioneer officials that expressed hostility towards FCA’s
religious views (more on that later).
Notably, the School District formalized the All-Comers
Policy shortly after plaintiffs filed this lawsuit. 9 The School
District then argued (as it does now) that the court cannot
consider its prior conduct under the “old” policy in deciding
the plaintiffs’ request for prospective relief from the “new”
policy. But there is little daylight between the School
District’s “old” and “new” policies. Much like putting
lipstick on a pig does not change that it is still a pig, the
School District cannot cleanse itself by cosmetically
tweaking its professed long-standing practice.
Based on the evidence presented, the Non-
Discrimination Policy and the All-Comers Policy are
inextricably linked and have been used selectively to deprive
FCA of ASB recognition at the same time that secular clubs
that discriminate on protected grounds have maintained ASB
recognition. See United States v. St Louis-San Francisco Ry.
9
Because of the COVID-19 pandemic, all student groups, including
FCA, received provisional ASB recognition during the 2020-21 school
year. The All-Comers Policy was thus purportedly not implemented
until the 2021-22 school year despite being approved over a year earlier.
Thus, any temporal gap between FCA’s lawsuit and the School District’s
development of the All-Comers Policy is artificially larger than it
appears.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 43
Co., 464 F.2d 301, 307 (8th Cir. 1972) (When a “current
policy serves to perpetuate the effects of past discrimination,
although neutral on its face, it rejuvenates the past
discrimination in both fact and law regardless of present
good faith.”) (internal quotation marks and citation
omitted)); accord Hulteen v. AT&T Corp., 498 F.3d 1001,
1006 (9th Cir. 2007). We thus conclude that the defendants’
selective enforcement of the “old” Non-Discrimination
Policy is relevant to the likelihood that FCA will suffer
future harm under the “new” All-Comers Policy. Again, this
evidence of selective enforcement means that we must apply
strict scrutiny, a standard that the School District’s policies
cannot meet. See Church of the Lukumi, 508 U.S. at 546–47
(holding that strict scrutiny can be satisfied “only in rare
cases,” and laws which are “underinclusive” as written or
applied cannot be upheld). 10
C. FCA Will Suffer Irreparable Harm.
“[T]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes
irreparable injury.” Klein v. City of San Clemente, 584 F.3d
1196, 1207–08 (9th Cir. 2009) (quoting Elrod v. Burns, 427
10
The EAA prohibits content-based discrimination within a “limited
open forum” such as the District’s ASB program. See 20 U.S.C.
§ 4071(a)–(b). We rely on First Amendment law when analyzing EAA
claims because “content neutrality for purposes of the [EAA] is identical
to content neutrality for First Amendment claims.” Alpha Delta, 648
F.3d at 802 n.5. A facially content-neutral ordinance may still be
unconstitutional if it is selectively enforced based on the content of
speech. See Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir.
2005). Thus, the plaintiffs’ EAA claim rises and falls with their Free
Exercise claim premised on selective enforcement. Because the School
District has selectively enforced its non-discrimination policies against
FCA, the policies as applied are content-based. Id. Thus, the plaintiffs
also are likely to prevail on their EAA claim.
44 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
U.S. 347, 373 (1976)). “[A] party seeking preliminary
injunctive relief in a First Amendment context can establish
irreparable injury sufficient to merit the grant of relief by
demonstrating the existence of a colorable First Amendment
claim.” Sammartano v. First Jud. Dist. Ct., 303 F.3d 959,
973 (9th Cir. 2002) (internal quotation marks and citation
omitted). As already discussed, plaintiffs have more than a
colorable claim that their Free Exercise rights have been, and
continue to be, violated. And depriving a student group of
recognition at the beginning of the new school year
constitutes irreparable harm because it hampers the group’s
ability to further its mission and recruit new members. See
Bible Club v. Placentia-Yorba Linda Sch. Dist., 573 F. Supp.
2d 1291, 1300 (C.D. Cal. 2008) (“[K]eeping the [Christian
student] group off campus” at the start of the school year will
“sabotage its efforts to recruit students when they are most
available, permanently stunting the size of the group’s
membership.”). Without an injunction mandating ASB
recognition for the 2022–23 school year, FCA will be
irreparably harmed by the denial of full ASB benefits. This
factor weighs in favor of injunctive relief.
D. Balance of Equities and Public Interest Favor
FCA.
When, as here, the party opposing injunctive relief is a
government entity, the third and fourth factors—the balance
of equities and the public interest—“merge.” Nken v.
Holder, 556 U.S. 418, 435 (2009). Because the plaintiffs are
likely to succeed on their Free Exercise claims, the balance
of equities and the public interest favor injunctive relief. See
Am. Bev. Ass’n v. City & Cty. of San Francisco, 916 F.3d
749, 758 (9th Cir. 2019) (“[T]he fact that [Plaintiffs] have
raised serious First Amendment questions compels a finding
that . . . the balance of hardships tips sharply in [Plaintiffs’]
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 45
favor,” and “we have consistently recognized the significant
public interest in upholding First Amendment principles.”
(internal quotation marks and citations omitted)).
Without injunctive relief, FCA’s membership may
continue to dwindle and, eventually, the club may cease to
exist District-wide. Moreover, “the clock is ticking down”
for students within the School District that desire to lead or
participate in FCA but may graduate without that
opportunity. See Bible Club, 573 F. Supp. 2d at 1300(stating that club members “have an urgent interest in
making the most of their adolescence”). By contrast, the
School District would not be harmed by granting an
injunction. There would simply be a return to the status quo
that existed for almost two decades within the School
District before May 2019: FCA students participating within
the ASB program on equal footing with other student groups.
The defendants argue that the “District’s objective to spare
its students the harms of discrimination and exclusion is
weighty” and is a “public policy of the highest order.” We
are sensitive to this important interest. But the School
District cannot—and does not—advance its interest in non-
discrimination by discriminating. The balance of equities
and public interest thus favor injunctive relief.
CONCLUSION
The plaintiffs are likely to succeed on their Free Exercise
claims alleging that the defendants have selectively enforced
their non-discrimination policies. The remaining factors
support granting the plaintiffs’ requested injunctive relief.
Therefore, we REVERSE the district court’s denial of
FCA’s motion for a preliminary injunction and direct the
46 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
district court to enter an order reinstating FCA’s ASB
recognition. 11
LEE, Circuit Judge, concurring:
Under the First Amendment, the government must
“proceed in a manner neutral toward and tolerant” of
people’s “religious beliefs.” Masterpiece Cakeshop, Ltd. v.
Colo. C.R. Comm’n, 138 S. Ct. 1719, 1731 (2018). The
School District contends that there is not a “whiff of
antireligious animus” motivating its actions. The record,
however, belies that assertion.
One schoolteacher called the Fellowship of Christian
Athletes’ (FCA) beliefs “bullshit” and sought to ban it from
campus. Another described evangelical Christians as
“charlatans” who perpetuate “darkness” and “ignorance.”
And yet another teacher 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.
More than a whiff, a stench of animus against the students’
11
The plaintiffs also appeal the district court’s denial of their two
motions to supplement the preliminary injunction record. Because the
district court failed to provide any explanation for denying the motions
and because the evidence—namely, Lopez’s third declaration—is highly
relevant for determining standing, we reverse the district court’s denial
of plaintiffs’ motions to supplement the preliminary injunction record.
See Ocean Beauty Seafoods, LLC v. Pac. Seafood Grp. Acquisition Co.,
611 F. App’x 385, 387 (9th Cir. 2015) (holding district court’s denial of
motion to supplement preliminary injunction record was an abuse of
discretion because “some of the excluded documents . . . were highly
relevant to the issues”).
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 47
religious beliefs pervades the Pioneer High School campus.
I write separately to highlight the depth of that animus and
explain why it is yet another reason why the School District
violated the Free Exercise Clause.
* * * * *
In Masterpiece Cakeshop, the Supreme Court considered
the interplay between a baker’s religious objection to making
a wedding cake for a gay couple and the state’s interest in
protecting its citizens from discrimination while seeking
goods and services. Id. at 1723. The Supreme Court
recognized the government’s interest in “protect[ing] the
rights and dignity of gay persons who are, or wish to be,
married but who face discrimination when they seek goods
or services.” Id. at 1723. But the Court also acknowledged
that “religious and philosophical objections to gay marriage
are protected views,” and “[t]he First Amendment ensures
that religious organizations and persons are given proper
protection as they seek to teach the principles that are so
fulfilling and so central to their lives and faiths.” Id. at 1727(quoting Obergefell v. Hodges, 576 U.S. 644, 679–80
(2015)). In balancing these competing interests, the
government must be “neutral and respectful” and may not
display “hostility toward . . . sincere religious beliefs.” Id.
at 1729.
To determine whether the government has complied with
its duty of neutrality, we assess “the historical background
of the decision under challenge, the specific series of events
leading to the enactment or official policy in question, and
the legislative or administrative history, including
contemporaneous statements made by members of the
decisionmaking body.” Id. at 1731 (quoting Church of the
Lukumi, 508 U.S. at 540).
48 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
The Supreme Court in Masterpiece Cakeshop held that
the Colorado Civil Rights Commission displayed “clear and
impermissible hostility” when considering the baker’s
religious objection. Id. at 1729. The “commissioners
endorsed the view that religious beliefs cannot legitimately
be carried into the public sphere or commercial domain.” Id.
Another commissioner described the baker’s faith as “one of
the most despicable pieces of rhetoric that people can use,”
which disparaged his religion in two ways: “by describing it
as despicable, and also by characterizing it as merely
rhetorical—something insubstantial and even insincere.” Id.
This commissioner also criticized religious freedom
generally as pretext for discrimination, even going “so far as
to compare [the baker’s] invocation of his sincerely held
religious beliefs to defenses of slavery and the Holocaust.”
Id. Furthermore, the “record show[ed] no objections to these
comments from other commissioners.” Id.
Here, Pioneer’s Climate Committee—the body that led
the district-wide push for FCA derecognition—had
members that expressed remarkably similar hostile
statements. Peter Glasser was the most forthcoming about
his contempt for FCA’s religious beliefs. The day after
learning about FCA’s religious-based views on marriage and
sexuality, Glasser channeled his inner Martin Luther,
pinning the Statement of Faith and Sexual Purity Statement
to his classroom whiteboard along with his grievances. But
instead of a reformation, Glasser demanded an inquisition.
As he explained in emails sent to Principal Espiritu, FCA’s
“bullshit” views “have no validity” and amount to heresy
because they violated “my truth.” Glasser believed
“attacking these views is the only way to make a better
campus” and proclaimed that he would not be an “enabler
for this kind of ‘religious freedom’ anymore.”
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 49
Glasser’s desire to attack FCA’s views makes plain that
FCA, putting it charitably, was “less than fully welcome” on
Pioneer’s campus. Id. Glasser’s comments also improperly
imputed insincerity to FCA’s religious views by referring to
their beliefs as an exercise in (air quotes) “religious
freedom.” See id.
Glasser was not the only skeptic. Michelle Bowman also
serves on the Climate Committee and as faculty advisor to
the Satanic Temple Club. In discussing this lawsuit with a
former student, she opined that “evangelicals, like FCA, are
charlatans and not in the least bit Christian,” and “choose
darkness over knowledge and they perpetuate ignorance.”
But it is not for Bowman to dictate what beliefs are
genuinely Christian. Id. at 1731 (The government cannot
“pass[] judgment upon or presuppose[] the illegitimacy of
religious beliefs.”). Nor should the government disfavor
religious-based beliefs, even if many may view them as not
“acceptable, logical, consistent, or comprehensible.” See
Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1876 (2021).
With these two individuals in the room, the Climate
Committee concluded that FCA’s Statement of Faith and
Sexual Purity Statement go against Pioneer High School’s
core values and that the Committee “need[s] to take a united
stance” against FCA. The Committee’s unity suggests there
was little to no push back against Glasser and Bowman’s
views. Masterpiece Cakeshop, 138 S. Ct. at 1729. So does
the speed of the derecognition decision—two days later,
Principal Espiritu informed FCA that they had lost
recognition without giving FCA’s students any opportunity
to defend themselves or their organization. At least the
baker in Masterpiece Cakeshop had a chance to be heard. Id.
at 1726.
50 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
Equally telling was the continued hostility towards FCA
even after it lost ASB recognition and thus could not
possibly violate the School District’s non-discrimination
policies. In an effort “to ban FCA completely from campus,”
Glasser ginned up another potential “avenue” of attack
during Summer 2019. He posited that FCA could be accused
of violating the School District’s sexual harassment policy
by creating “a hostile work environment for students and
faculty.” In other words, teenagers—meeting privately to
discuss the Bible—were creating a hostile work environment
for adult faculty, according to Glasser. There is no
indication in the record that Glasser’s inimical view of FCA
was rebuffed. 1
The defendants contend that any past animus is legally
irrelevant for two reasons. First, they argue that the School
District, and not the Climate Committee, made the decision
to derecognize FCA, and this “decision was based solely on
the club’s violation of the [non-discrimination] policy.”
Second, they contend that past animus has no bearing on
whether the plaintiffs are likely to suffer future harm—
denial of ASB recognition—during the 2022–23 school
year, when the School District’s new All-Comers Policy is
in force. The defendants are wrong on both points.
The School District is incorrect that our animus inquiry
must be strictly limited to the actions or words of the
“decisionmakers.” As the Supreme Court held, we may
1
The dissent points out that the principal apparently “coached”
Glasser about “how to consider the way students might respond” when
he posted the FCA documents in his classrooms and criticized them on
the whiteboard. But other than that, the School District took no other
action: it did not conduct any investigation into Glasser’s actions and did
not ever “reach” the “conclusion” that Glasser’s conduct was
“improper.”
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 51
assess “the historical background” and “specific series of
events leading” to the decision in question. Id. at 1731. 2
And the “historical background” and “series of events”
leading to FCA’s derecognition included animus against
FCA’s religious beliefs by multiple Pioneer officials.
The events preceding FCA’s derecognition are of special
importance here because the School District relied on
receiving complaints in enforcing its Non-Discrimination
Policy. Absent Glasser’s call for action and pressure, the
Climate Committee may have never broached FCA’s
Statement of Faith and Sexual Purity Statement and its ASB
status. And but for the Climate Committee’s “united stance”
against FCA, the controversy would not have been escalated
to the School District. So even if it was the School District
that determined FCA was violating the Non-Discrimination
Policy, the issue came to its attention as a result of Glasser’s
open hostility towards FCA’s religious beliefs expressed to
Principal Espiritu and the Climate Committee. 3 The Climate
2
The record is somewhat conflicting about whether the School
District or Principal Espiritu had the final say on derecognition. School
District officials testified that “ASB approval [is] handled at the
individual school level” by the school principal and that the School
District only provides guidance around compliance with its policies and
has never—and did not for FCA—mandate a specific action. But
Espiritu and School District officials also testified that the decision to
derecognize FCA received sign-off from the School District and was
applied district-wide. Ultimately, there is little doubt that Pioneer was
substantially involved in revoking FCA’s recognition.
3
The Non-Discrimination Policy was an afterthought to Pioneer
officials. Glasser never mentioned the Non-Discrimination Policy in his
letter to Principal Espiritu. And the Climate Committee determined that
FCA’s Statement of Faith “goes against core values of [Pioneer High
School] (inclusive, open-mindedness),” not that it violated the Non-
Discrimination Policy. We acknowledge that the Climate Committee’s
52 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
Committee’s “united stance” then catalyzed the School
District’s derecognition of FCA.
The defendants also cannot dismiss their past animus by
relying on the newly-adopted All-Comers Policy. When
Pioneer officials pushed to have FCA derecognized after the
Climate Committee meeting, the plaintiffs were deprived of
ASB recognition in violation of their Free Exercise rights.
FCA had enjoyed ASB recognition for nearly two decades
without controversy, and the School District’s laissez-faire
attitude to enforcing its Non-Discrimination Policy meant
that FCA would likely retain recognition but for the Climate
Committee’s actions. As Pioneer’s Activities Director
admitted, renewal of ASB recognition for already-
established clubs like FCA was a formality.
The defendants say their concerted effort to derecognize
FCA should be excused because ASB approval is decided
annually, and during the upcoming 2022–23 school year, the
only relevant inquiry is whether the School District may
properly deny FCA recognition for violating its All-Comers
Policy. But as explained in the majority opinion, the
defendants concede that FCA will not be approved while it
maintains its faith requirements for student leaders, and the
All-Comers Policy is inextricably linked to the Non-
Discrimination Policy in force in Spring 2019.
reference to inclusivity and open-mindedness could arguably be
interpreted as an invocation of the District’s Non-Discrimination Policy.
But the selective enforcement demonstrates that noncompliance with the
policy was a necessary but insufficient condition for derecognition. The
record supports the inference that the added ingredient of hostility is
what caused the Climate Committee to turn its legitimate concern for
discrimination into action.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 53
* * * * *
In sum, animus against the FCA students’ religious-
based views infected the School District’s decision to strip
the FCA of its ASB status. And that violates the First
Amendment’s protection of the free exercise of religion.
CHRISTEN, Circuit Judge, dissenting:
In their haste to reach the merits of this dispute, plaintiffs
urge us to resolve fact-laden questions relevant only to their
claims for past injuries, not to the prospective ones at the
center of their motion for a preliminary injunction. They
then insist that the district court’s adherence to binding
precedent constitutes an abuse of discretion. Our court
responds by reaching the merits and adopting plaintiffs’
version of disputed facts—before parsing whether plaintiffs
established the “irreducible constitutional minimum” of
Article III standing. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992); see also Sierra Club v. Morton, 405 U.S.
727, 735 (1972); Summers v. Earth Island Inst., 555 U.S.
488, 492–93 (2009). Because we lack jurisdiction, I
respectfully dissent.
Rather than requiring declarations of the sort called for
by Lujan, Sierra Club, and Summers, the court accepts
counsel’s unsupported assurances that a student intends to
apply for ASB status for the 2022–23 school year. It also
selectively reviews the record. First, the majority relies upon
an FCA staff member’s hearsay assertion that a student
intended to apply for ASB recognition for the 2021–22
school year, overlooking that—for unknown reasons—this
student did not apply that year and is no longer listed as a
club member. Next, the majority pivots to a later declaration
54 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
by the same FCA staff member that addresses the right
school year, 2022–23, but identifies a different student-club
leader and fails to present even a second-hand account of the
required intent. In fact, the declaration says nothing at all
about whether the newly identified student intends to apply
for club recognition or would do so if the District’s policy
were enjoined. Puzzlingly, the majority is persuaded by
plaintiffs’ argument that a pre-trial discovery stipulation
prevents them from offering student statements or
testimony.
The stipulation plaintiffs voluntarily entered into cannot
excuse their failure to establish a justiciable controversy, and
the unavoidable reality is that the District’s
nondiscrimination policy will not harm FCA if no student
intends to apply for ASB recognition. Both the Supreme
Court and our Circuit have dismissed multiple claims for
lack of standing where would-be litigants presented far more
concrete and specific plans than the conclusory and
unsupported declarations offered by plaintiffs. If we are to
apply the law evenly and fairly, we should dismiss this
appeal.
I.
A.
The FCA is an international religious ministry with
thousands of student chapters at United States educational
institutions, including colleges, high schools, and middle
schools. These chapters are led by student leaders who must
be approved by FCA National. FCA adheres to a core set of
Christian beliefs that are set forth in its “Statement of Faith.”
While all students are eligible to become members of FCA,
student leaders of FCA must agree to abide by the beliefs
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 55
articulated in its Statement of Faith. Among other things,
the Statement of Faith provides:
God’s design for sexual intimacy is to be
expressed only within the context of
marriage. God instituted marriage between
one man and one woman as the foundation of
the family and the basic structure of human
society. For this reason, we believe that
marriage is exclusively the union of one man
and one woman.
Potential FCA leaders fill out student leadership
applications, in which they “affirm their agreement with
FCA’s Christian beliefs” and pledge to “not subscribe to or
promote any religious beliefs inconsistent with these
beliefs.” FCA student leaders must also agree to adhere to
the FCA’s “Sexual Purity Statement.” It provides:
God desires His children to lead pure lives of
holiness. 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.
While upholding God’s standard of holiness,
FCA strongly affirms God’s love and
redemptive power in the individual who
chooses to follow Him. FCA’s desire is to
encourage individuals to trust in Jesus and
turn away from any impure lifestyle.
Starting in the early 2000s, students led FCA clubs on
three campuses in the San Jose Unified School District,
56 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
including at Willow Glen, Leland, and Pioneer High School.
Plaintiffs Charlotte Klarke and Elizabeth Sinclair, high
school seniors, were student leaders of Pioneer FCA. FCA
clubs were part of the District’s program for recognized
student-led organizations known as the Associated Student
Body (ASB) program.
The ASB program provides a forum for clubs to organize
around students’ “personal interests”; to “give students
practice in self-governance”; to “provide social and
recreational activities”; and to “enhance school spirit and
student sense of belonging.” ASB clubs are student-led and
only students may be members. ASB clubs receive several
benefits, including access to an official faculty advisor,
access to ASB accounts and bookkeeping services, inclusion
in official school club lists (which apparently helps with
recruitment), inclusion in the yearbook, priority access to
campus meeting space, and the ability to conduct ASB-
approved fundraisers on and off campus. No clubs receive
ASB funding. Students must apply for renewal of ASB
recognition each fall. The application must be signed by the
group’s student officers.
B.
In April 2019, three Pioneer High School students
complained about FCA’s requirement that students seeking
club leadership positions agree to abide by its Statement of
Faith and Sexual Purity Statement. Pioneer High School
Principal Herbert Espiritu contacted the District
Superintendent’s Office and it determined that because FCA
National’s leadership restrictions violate the District’s
nondiscrimination policies FCA clubs are therefore
ineligible for ASB recognition.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 57
The District’s nondiscrimination policies (Board
Policies 0410 and 5145.3, collectively, “the Policy”), both
state that District programs, activities, and practices shall be
free from discrimination based on, among other things,
gender, gender identity and expression, race, color, religion,
ancestry, national origin, immigration status, ethnic group,
pregnancy, marital or parental status, physical or mental
disability, sexual orientation or the perception of one or more
of such characteristics. 1
1
Board Policy 0410 states:
The Governing Board is committed to equal
opportunity for all individuals in district programs and
activities. District programs, and activities, and
practices shall be free from discrimination based on
gender, gender identity and expression, race, color,
religion, ancestry, national origin, immigration status,
ethnic group, pregnancy, marital or parental status,
physical or mental disability, sexual orientation or the
perception of one or more of such characteristics. The
Board shall promote programs which ensure that any
discriminatory practices are eliminated in all district
activities.
Board Policy 5145.3 states:
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. The Governing Board desires to
provide a safe school environment that allows all
students equal access to District programs and
activities regardless of actual or perceived ethnicity,
58 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
It is uncontested that in May 2019, Espiritu informed the
Pioneer FCA’s student leaders that Pioneer High School
would no longer recognize the club as an ASB student group
because the District’s Policy did not permit the District to
“sponsor programs or activities with discriminatory
practices.” But the parties argue at length about the events
that followed FCA’s derecognition, whether the District’s
reliance on its nondiscrimination policies to derecognize
FCA was pretextual, and whether the actual decision was
based on FCA’s religious beliefs. Many facts concerning the
parties’ controversy remain unresolved, but most readers
will be hard-pressed to know that from reading the
majority’s opinion. Regrettably, though this case is at the
preliminary injunction stage, it may appear to readers that
the court has adopted plaintiffs’ version of events as
established historical fact. To give just a few examples: the
majority proclaims that there is “unrebutted evidence that the
School District has exempted a secular group from its All-
Comers Policy,” but this is contrary to the district court’s
finding that plaintiffs did not establish that “any club
[besides FCA] discriminates in violation of the Policy” or
has “refused to sign the ASB Affirmation Form.” The
majority also asserts that “Girl Talk and Big Sisters/Little
Sisters limited membership to female-identifying students.”
What the Pioneer Activities Director actually stated in her
declaration was that “there is no indication” that Girl Talk
“was approved by the ASB,” and that she did “not recall that
club ever being active” since 2015. As to Big Sisters/Little
Sisters, the Director testified that the group “essentially
acted as one club” with Big Brother/Little Brother—“the Big
religion, gender, gender identity, gender expression,
color, race, ancestry, nation origin, physical or mental
disability, sexual orientation, or any other
classification protected by law.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 59
Sib / Little Sib Club”—and that “[a]nyone can be a member
or leader of either of the clubs.” The majority contends that
“the school’s selective enforcement of the All-Comers
Policy was apparent” because the Director stated in her
deposition that Girls Who Code and Girls’ Circle could limit
their membership to female-identifying students. But the
majority ignores the district court’s findings to the contrary.
In fact, the Girls Who Code club constitution does not
restrict membership or leadership based on gender, the
club’s organization manager told the Associate
Superintendent that “all interested students may participate”
in the club, and the club was cofounded by a male student
who “served as co-president.” The Director also clarified
that Girls’ Circle is a separate Pioneer counseling program
and is not a student club, is not ASB approved, and has no
ASB account. Finally, the majority declares that a student
identified as “N.M.” has “stated an intention to apply for
ASB recognition if an injunction is granted.” In fact, neither
N.M. nor any other student has declared an intent to apply
for 2022–2023, the school year that matters for purposes of
prospective injunctive relief. See infra. 2
As an appellate court, it is not our role to find facts (we
are “a court of review, not of first view,” Cutter v. Wilkinson,
544 U.S. 709, 718 n.7 (2005)), and the trial court’s findings
at this preliminary stage are binding unless clearly
erroneous, see, e.g., Landis v. Washington State Major
League Baseball Stadium Pub. Facilities Dist., 11 F.4th
2The concurring opinion also claims that there “is no indication”
that a Pioneer staff member’s “inimical view of FCA was rebuffed.”
This disregards the testimony from the District’s 30(b)(6) witness that
Principal Espiritu “had a conversation” with the staff member in which
the Principal “coached him on how to consider the way students might
respond.”
60 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
1101, 1105 (9th Cir. 2021). It bears noting that this case has
yet to go to trial and some of the statements relied upon by
the majority have not even been stress-tested at deposition.
In short, against the backdrop of a heated controversy in a
public high school involving important and competing
constitutional rights, the court misses an opportunity. Our
schools should be places where students learn how to
interact with each other as citizens, see Mahanoy Area Sch.
Dist. v. B. L., 141 S. Ct. 2038, 2046 (2021), to resolve issues
civilly, and to respect the judicial process. Here, the court
likely—and regrettably—adds fuel to the controversy at
Pioneer High.
C.
After the District derecognized FCA, it placed FCA’s
student groups into a new category, “student interest
groups,” which are permitted to advertise and meet at the
school, participate in club rush, and use the auditorium.
Student interest groups do not have access to an ASB
account or bookkeeping, cannot raise funds on campus, and
do not appear in the yearbook. In the fall of 2019, FCA was
denied ASB recognition for the 2019–20 school year. In the
Spring of 2020, the District created an “ASB Affirmation
Form” that all ASB clubs must complete in order to receive
ASB recognition. 3 The parties refer to this form as the “All-
Comers Policy.” See Christian Legal Society v. Martinez,
561 U.S. 661, 696 (2010) (expressly approving the use of an
all-comers policy). By signing this form, ASB club leaders
3
Relevant here, the form states that no “ASB recognized students
groups shall discriminate against any student or group of students or any
other person on any unlawful basis, including on the basis of gender,
gender identity and or expression, race, . . . religion, . . . [or] sexual
orientation.”
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 61
affirm that they will allow “any currently enrolled student to
participate in, become a member of, and seek or hold
leadership positions in the organization, regardless of his
status or beliefs.”
Student club activities stopped that Spring due to
COVID-19 and clubs did not meet in person again until April
2021. For the 2020–21 school year, classes and school
activities were conducted remotely, and Pioneer High
School granted modified conditional approval to all student
clubs, including Pioneer FCA, that year.
In anticipation of the 2021–22 school year, the District
issued new guidelines, trained its directors on the ASB
approval process, revised the ASB application, and created
standardized application forms and club constitutions
requiring all ASB-recognized clubs to abide by the District’s
nondiscrimination policy. All ASB-approved clubs in
2021–22 were required to sign the form agreeing to follow
the District’s Policy and to adopt constitutions prohibiting
discrimination in club membership and leadership. No FCA
club applied for recognition at any District high school for
the 2021–22 school year, and Pioneer FCA declined an
invitation to host a table at Pioneer High School’s club rush
that fall.
Plaintiffs FCA National and seniors Klarke and Sinclair
filed the present lawsuit on April 22, 2020, before Pioneer
High School provisionally recognized all student groups for
the 2020–21 school year. Defendants moved to dismiss
plaintiffs’ complaint in August 2020, and the district court
granted the motion in part. The court dismissed with
prejudice Klarke’s and Sinclair’s claims for prospective
injunctive relief because those claims became moot when
Klarke and Sinclair graduated. Klarke’s and Sinclair’s
damages claims remain pending. The district court
62 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
dismissed all of FCA National’s claims without prejudice
because it failed to allege its own organizational or
associational standing. The district court also dismissed
FCA’s facial challenges to the Policy after concluding it was
content neutral.
FCA National, Klarke, Sinclair, and Pioneer FCA filed
the operative complaint in July 2021. A few weeks later,
plaintiffs filed a motion for a preliminary injunction seeking
an order requiring the District to recognize Pioneer FCA as
an ASB student group. Though plaintiffs’ complaint
includes concerning allegations that one or more faculty
members made disparaging comments directed at FCA, their
motion for a preliminary injunction sought only an order
directing the District to grant ASB recognition for FCA.
Defendants again moved to dismiss. Their motion argued
that FCA National and Pioneer FCA lacked organizational
standing and that all plaintiffs lacked standing for the
requested prospective injunctive relief.
While the motion to dismiss and motion for a
preliminary injunction were pending, the parties completed
discovery. In the process, the District agreed not to depose
any current or former FCA-affiliated students and FCA
stipulated that it would neither call any FCA-affiliated
students or former students at trial, nor use “previously
unsubmitted testimony or statements of such witnesses . . .
at trial, at any hearing in this case, or in connection with any
motion.” The stipulation did not limit the introduction of
testimony from plaintiffs Klarke and Sinclair.
The district court denied the motion for a preliminary
injunction on June 1, 2022. This appeal is limited to that
ruling.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 63
II.
A.
The Supreme Court has said that Article III’s standing
requirement is the “irreducible constitutional minimum.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Thus, we must begin by establishing that we have
jurisdiction to review the district court’s order denying
FCA’s motion for a preliminary injunction. See Associated
Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equity, 950
F.2d 1401, 1405 (9th Cir. 1991). Because standing must be
established “for each form of relief that is sought,” Davis v.
FEC, 554 U.S. 724, 734 (2008), it is not enough that FCA
National, or Pioneer FCA, or any other plaintiff may have
standing to bring claims for past violations of their
constitutional rights. To obtain the pre-trial prospective
relief requested by the preliminary injunction, plaintiffs
must establish that they will be harmed during the 2022–23
school year by the District’s Policy, and that requires
showing that a student intends to apply for ASB recognition,
or would do so if the policy were enjoined. 4
Our Constitution limits “the category of litigants
empowered to maintain a lawsuit in federal court to seek
redress for a legal wrong.” Spokeo, Inc. v. Robins, 578 U.S.
330, 338 (2016). To satisfy Article III’s standing
requirements, either FCA National or Pioneer FCA must
establish that it has “(1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant,
4
Klarke and Sinclair are not parties to this appeal because it is
limited to reviewing the denial of plaintiffs’ preliminary injunction
motion and Klarke’s and Sinclair’s claims for prospective relief were
dismissed with prejudice.
64 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
and (3) that is likely to be redressed by a favorable judicial
decision.” Id. (citing Lujan, 504 U.S. at 560–61; Friends of
the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528
U.S. 167, 180–81 (2000)).
Claims for prospective relief implicate Article III’s
requirement that the articulated injury be “actual” or
“imminent.” 5 The Supreme Court has held that “[p]ast
exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief” unless it is
accompanied by “continuing, present adverse effects,” City
of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal
quotation marks omitted) (quoting O’Shea v. Littleton, 414
U.S. 488, 495–96 (1974)); or the plaintiff demonstrates there
is “sufficient likelihood that she will again be wronged in a
similar way, Villa v. Maricopa Cnty., 865 F.3d 1224, 1229
(9th Cir. 2017) (alteration omitted) (quoting Lyons, 461 U.S.
at 111).
The majority persistently conflates plaintiffs’ claims for
past and future injury; this error runs through its opinion.
For example, as the district court recognized, even if FCA
were able to show that the District failed to enforce its Policy
in the past, the procedures the District implemented in the
spring of 2020 to require all ASB clubs adopt standardized
constitutions and affirm their compliance with the Policy,
were designed to ensure all clubs’ compliance on a going-
5
The Supreme Court has articulated this part of the test as “actual
and imminent” and also as “actual or imminent.” See, e.g., Summers,
555 U.S. at 493 (“actual and imminent”); Lujan, 504 U.S. at 564 (“actual
or imminent”). In East Bay Sanctuary, we cited the “actual and
imminent” formulation of the injury-in-fact test. 993 F.3d at 663. But
in Lujan, the Supreme Court articulated the test as “actual or imminent,”
and recognized that where harm has not yet occurred, imminence must
be shown. See Lujan, 504 U.S. at 565 n.2.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 65
forward basis. The majority insists that the
nondiscrimination policy and the All-Comers Affirmation
Form were “one and the same,” but this is plainly wrong.
The affirmation form serves a critically distinct function and
it was central to the district court’s determination that
prospective injunctive relief was not warranted.
The majority accepts plaintiffs’ argument that the
District selectively enforced its Policy because the District
approved the Senior Women Club’s ambiguous ASB
application, which simultaneously affirmed compliance with
the Policy and included a notation that “[m]embers are
considered students who are seniors who identify as female.”
The majority brushes off the district court’s factual finding
that “there is no clear proof that the district allows the club
to violate the Policy,” or that the club actually discriminates.
The district court did not ignore the ambiguity presented by
the handwritten notation but recognized the District’s
approval may have been an oversight. See Alpha Delta Chi-
Delta Chapter v. Reed, 648 F.3d 790, 804 (9th Cir. 2011)
(finding no selective enforcement where a school
“inadvertently” approved a discriminating student group due
to “administrative oversight,” or where, “despite the
language in [its] application[],” the supposedly offending
group “agreed to abide by the nondiscrimination policy”).
The court’s analysis demonstrates that it correctly limited its
focus to how the Policy would operate prospectively. The
majority’s scattershot references to other clubs are also
unavailing because the court found no club besides FCA has
refused to sign the ASB Affirmation Form and there is no
evidence that any other club discriminates. Critically, the
court found District officials have no discretion to grant
exemptions to the Policy. Cf. Fulton v. City of Philadelphia,
141 S. Ct. 1868, 1879 (2021). The majority misunderstands
the significance of the All-Comers Policy and incorrectly
66 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
relies on allegations of past selective enforcement to
conclude that FCA faces an ongoing or imminent injury
from the District’s nondiscrimination policy.
B.
The Supreme Court has “repeatedly reiterated” that
threatened injury is not enough. Clapper v. Amenesty Int’l
USA, 568 U.S. 398, 409 (2013). Instead, the plaintiff must
establish a threatened injury that is “certainly impending” or
that “there is a substantial risk the harm will occur.” Index
Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 825
(9th Cir. 2020) (internal quotation marks omitted) (quoting
In re Zappos.com, Inc, 888 F.3d 1020, 1024 (9th Cir. 2018)).
FCA bears the burden to establish each element of
standing “with the manner and degree of evidence required”
for this stage of the litigation. Lujan, 504 U.S. at 561. Even
at the preliminary injunction stage, FCA must make a “clear
showing” of each element of Article III standing. Townley
v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013).
Organizations can assert standing on behalf of their
members or in their own right, E. Bay Sanctuary Covenant
v. Biden, 993 F.3d 640, 662 (9th Cir. 2021), and the
operative complaint invokes both theories. 6 To assert
6
FCA National first argued that it has standing, as a national
organization, to challenge policies forbidding the formation of student
clubs on public school campuses, but it offered no authority for this
proposition and we have never embraced such a capacious theory of
organizational standing. See E. Bay Sanctuary, 993 F.3d at 662. Pioneer
FCA separately argued that it has standing as the “object of” the
District’s actions. We have rejected the “broad” proposition that “the
object of a regulation” is presumed to have standing. Cal. Sea Urchin
Comm’n v. Bean, 883 F.3d 1173, 1181 (9th Cir. 2018).
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 67
standing on behalf of its members, the FCA plaintiffs must
establish that at least one of its members would have
standing to sue, that the interests the suit seeks to vindicate
are germane to the organization’s purpose, and that neither
the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit. Friends
of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528
U.S. 167, 181 (2000). 7 In their representational capacity,
FCA National and Pioneer FCA allege that student members
have standing to obtain prospective injunctive relief because
they face imminent injury from the District’s
nondiscrimination policy for the 2022–23 school year and
the Policy deters them from applying for ASB recognition
for the 2022–23 school year.
To assert direct standing on its own behalf, FCA must
“allege[s] such a personal stake in the outcome of the
controversy as to warrant [its] invocation of federal-court
jurisdiction[.]” Havens Realty Corp. v. Coleman, 455 U.S.
363, 378–79 (1982) (citation and internal quotation marks
omitted). This requires showing “the defendant’s behavior
has frustrated [the organization’s] mission and caused it to
divert resources in response to that frustration of purpose.”
E. Bay Sanctuary, 993 F.3d at 663 (citing Fair Hous. of
Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)). FCA
National and Pioneer FCA allege the District’s denial of
ASB recognition will discourage students from starting,
maintaining, or participating in FCA clubs and thus frustrate
7
Sabra v. Maricopa County Community College District, on which
the majority relies, is not to the contrary. See No. 20-16774, 2022 WL
3222451 (9th Cir. Aug. 10, 2022). That case did not involve a request
for preliminary injunctive relief and we concluded only that the
organization’s “broadly alleged” diversion-of-resources injury was
sufficient to establish that the organization had been harmed in the past.
Id. at *8.
68 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
FCA’s mission. FCA National alleges that it diverted
resources in response to the District’s decision to
derecognize FCA in 2019, devoted additional staff member
time to Pioneer FCA members, and paid attorneys to educate
District officials and FCA members about rights available
under the Equal Access Act and the First Amendment. FCA
contends that these harms are “ongoing,” but the prospective
harm the motion for a preliminary injunction is premised
upon is the risk that FCA will not be recognized during the
2022–23 school year. The district court correctly reasoned
that harm resulting from the District’s decision to
derecognize the club during the 2019–20 and 2021–22
school years cannot be redressed by an order requiring
recognition for 2022–23. Plaintiffs’ claims for damages
arising from past harms will be litigated when this case
proceeds to trial.
C.
It is uncontested that student groups like FCA must
reapply each fall for official ASB recognition. It is also
uncontested that only student club leaders may apply.
Because the District’s nondiscrimination policy cannot
cause a real or immediately impending injury to FCA if no
students apply for ASB recognition, FCA cannot establish
standing without evidence that a Pioneer FCA student has
applied, or intends to apply, for ASB recognition for the
upcoming school year. FCA failed to make that showing.
Plaintiffs thus lack standing to seek prospective preliminary
relief, and our court lacks jurisdiction over this preliminary
injunction appeal.
1.
In Sierra Club v. Morton, the Supreme Court ruled that
an organizational plaintiff lacked standing because it “failed
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 69
to allege that it or its members would be affected in any of
their activities” by the Forest Service’s approval of a
construction project in Sequoia National Park. 405 U.S. 727,
735 (1972). The Court explained that Article III requires
“more than an injury to a cognizable interest[;] [i]t requires
that the party seeking review be himself among the injured.”
Id. In Morton, because the anticipated effects of the
proposed construction would “be felt directly only by those
who use” the Park, the Sierra Club was required establish
that its members use (or intended to use) the Park in a way
that could be significantly affected by the Forest Service’s
action. Id. (emphasis added). The Sierra Club failed to
establish Article III standing because it did not show, in any
of its “pleadings or affidavits,” that its members would be
affected by the Forest Service’s actions. Id.The Supreme Court expanded on these principles in
Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992).
There, the Court held that an environmental organization
lacked standing to challenge a regulation jointly
promulgated by the Secretaries of Interior and Commerce
affecting endangered species in foreign countries. Id. at 558,
564. The Court concluded that Defenders of Wildlife also
failed to show that its members suffered an “actual or
imminent injury” from the Secretaries’ regulation. Id. at
564. Unlike in Morton, the Defenders of Wildlife provided
affidavits from its members stating that they previously
visited the countries where the endangered species were
located and that the members intended to visit again. Id. at
563–64. One member of the Defenders stated that she had
traveled to Egypt a few years prior, had “observed the
traditional habitat of the endangered [N]ile crocodile there
and intend[s] to do so again, and hope[s] to observe the
crocodile directly.” Id. at 563. She stated that she would
“suffer harm in fact as the result of [the] American . . . role
70 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
. . . in overseeing the rehabilitation of the Aswan High Dam
on the Nile . . . and [in] develop[ing] . . . Egypt’s . . . Master
Water Plan.” Id. Another member stated that she had
traveled to Sri Lanka in 1981, observed the habitat of
endangered species like the Asian elephant and leopard at
what had become the site of a development project, and that
the threat from the development project harmed her because
she “intend[ed] to return to Sri Lanka in the future.” Id.Despite these affidavits, the Supreme Court dismissed
the Defenders’ complaint for lack of standing. Id. at 578.
Specifically, the Court concluded that the affidavits were
insufficient to demonstrate an imminent injury to the group’s
members. Id. at 564. That one member had visited the areas
of the projects before the projects commenced “prove[d]
nothing” because allegations of a cognizable injury are not
enough to establish standing for prospective relief. Id. The
Court explained that the members’ statements of intent to
return to the locations affected by the regulation were
“simply not enough,” because “[s]uch ‘some day’ intentions
—without any description of concrete plans, or indeed even
any specification of when the some day will be—do not
support a finding of the ‘actual or imminent’ injury that our
cases require.” Id.The Supreme Court reached the same result in Summers
v. Earth Island Institute, concluding that an environmental
organization lacked standing to challenge the Forest
Service’s enforcement of regulations exempting projects
from the Forest Service’s appeal process. 555 U.S. 488, 490
(2009). As in Lujan, the Supreme Court rejected an affidavit
submitted by a member of the organization and concluded
that it was insufficient to show an imminent injury. The
member’s affidavit in Summers asserted that he had
“suffered injury in the past from development on Forest
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 71
Service land.” Id. The Supreme Court reasoned that this
statement was insufficient because the injury was not tied to
the challenged regulations, the affidavit did not identify a
specific site in the forest, and it related only to past injury,
not any imminent future injury justifying prospective
injunctive relief. Id. The Court also rejected the member’s
statement that he had visited unnamed national forests in the
past and planned to visit national forests in the future,
concluding that these allegations were insufficient because it
was impossible to tell which forests the member might visit,
and accordingly, which projects the organization might have
standing to challenge. Id. Finally, though the member also
specifically stated that he wanted to visit locations in
Allegheny National Forest, his statement lacked any “firm
intention” to visit these locations and thus was “insufficient
to satisfy the requirement of imminent injury.” Id. at 496.
The Court’s insistence upon a showing of imminent
future injury to justify prospective injunctive relief has not
been limited to the environmental context. In Adarand
Constructors, Inc. v. Pena, a construction company brought
suit because its efforts to compete for highway construction
contracts were frustrated by the federal government’s use of
contractual clauses that allegedly prevented it from
“competing on equal footing” with similarly situated
businesses. 515 U.S. 200, 211 (1995). Because the
company’s standing to bring suit depended on the existence
of future contracts that did not yet exist, the Court analyzed
whether the company “made an adequate showing that
sometime in the relatively near future it will bid on another
Government contract” likely to contain the challenged
clause. Id. (emphasis added). The Supreme Court
concluded that the company had established standing
because it provided deposition testimony from its general
manager that it bid on “every guardrail project” in Colorado,
72 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
and it showed that each year, there were an average of 1.5
guardrail contracts in Colorado that incorporated the clause.
Id. at 212 (emphasis added). On this showing, the
company’s injury was sufficiently imminent and it was
deemed to have standing to pursue prospective relief.
Following the Supreme Court’s lead, we have insisted
upon “concrete plans” or “firm intentions” as an
indispensable part of Article III’s imminence analysis. For
example, we have held that environmental plaintiffs did not
face imminent injury from a challenged environmental
regulation unless they establish concrete plans or firm
intentions to visit or use the locations that will be affected by
the challenged regulation. See, e.g., Wilderness Soc., Inc. v.
Rey, 622 F.3d 1251, 1256 (9th Cir. 2010) (rejecting as
insufficient an affidavit demonstrating the organizational
plaintiff’s member’s “extensive past use” of the affected
location because the member’s expressed intent to return
was indefinite and akin to a “some day” intention). In the
Americans with Disabilities Act context, we have explained
that an individual with disabilities faces imminent injury
from a non-accommodating business only if the plaintiff
demonstrates her intent to return to the business if it is made
accessible. See, e.g., D’Lil v. Best W. Encina Lodge &
Suites, 538 F.3d 1031, 1038–39 & n.9 (9th Cir. 2008).
Similarly, in Yazzie v. Hobbs, we dismissed an appeal
from the denial of a preliminary injunction arising from a
vote-by-mail deadline. 977 F.3d 964, 967 (9th Cir. 2020)
(per curiam). There, plaintiffs argued that the myriad
challenges faced by the Navajo Nation—the need to travel
to a post office, socioeconomic challenges, language
barriers, and the extended delays before mail ballots from
the Navajo nation are received—diminished their
opportunity to vote. Id. at 965–66. Rather than jumping to
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 73
the merits of plaintiffs’ compelling allegations, we held that
they lacked standing for failure to show risk of imminent
injury because they did not establish they intended to vote
by mail in the upcoming election. Id. We concluded
plaintiffs’ general intent to, “at some point,” cast ballots in a
particular way was the “epitom[e]” of speculative injury. Id.
at 966.
These constitutional minimums for standing come into
sharp focus when plaintiffs challenge threats of future
government action. For example, in Lopez v. Candaele, a
student enrolled in “Speech 101” at Los Angeles Community
College decided to give his assigned speech on his belief in
God, including a “dictionary definition of marriage as being
a union between a man and a woman.” 630 F.3d 775, 782–
83 (9th Cir. 2010). After the speech, the instructor called
Lopez a “fascist bastard.” Id. at 783. The student then
submitted a proposed speech about how one should “always
stand up for what you believe in.” Id. It was returned with
an “A” grade and a note from the instructor on the proposed
topic: “Remember—you agree to Student Code of Conduct
as a student at LACC.” Id. After obtaining counsel, Lopez
moved to preliminarily enjoin the college from enforcing its
sexual harassment policy against him. Id. at 782. To prove
his intent to violate that policy, Lopez offered his plan to
“discuss his Christian views on politics, morality, social
issues, religion, and the like.” Id. at 790. We held that Lopez
lacked standing to obtain preliminary injunctive relief, as the
“few details” he provided were insufficient to make a clear
showing that Lopez “faced a specific, credible threat of
adverse state action” by the college. Id. at 788. In part, we
based our conclusion on the fact that Lopez failed to
“adequately prove[] his intent to violate the policy” with
speech that arguably fell within the policy’s scope. Id. at
790.
74 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
Similarly, we have held that a plaintiff who lacks
concrete plans or firm intentions to violate a challenged
criminal statute or nondiscrimination law does not face
imminent injury that is sufficient to challenge the law before
its application. See San Diego Cnty. Gun Rts. Comm. v.
Reno, 98 F.3d 1121, 1126–27 (9th Cir. 1996) (rejecting
plaintiffs’ alleged “wish and intent to engage in activities
prohibited by” a challenged statute as too indefinite);
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,
1141 (9th Cir. 2000) (dismissing complaint, on Article III
justiciability grounds, where landlords expressed their intent
to violate an anti-discrimination law by refusing to rent to
unmarried couples on religious grounds, because plaintiffs
failed to allege when, where, or under what circumstances
they had or would violate the anti-discrimination law.) The
absence of a concrete plan or firm intentions to take action
that will trigger the challenged conduct renders any future
injury too speculative for Article III purposes. Thomas, 220
F.3d at 1139; Associated Gen. Contractors of Cal., Inc. v.
Coal. for Econ. Equity, 950 F.2d 1401, 1407 (9th Cir. 1991).
The FCA plaintiffs’ suggestion that they are entitled to
prospective injunctive relief without showing that FCA
student members have sufficiently definite plans to apply for
ASB recognition for the 2022–23 school year, or that they
would apply in the absence of the District’s
nondiscrimination policy, is flatly refuted by precedent.
Under binding case law, FCA cannot assert standing on
behalf of its members unless one member faces an imminent
injury. Similarly, the FCA organizational plaintiffs must
show that the District’s Policy will affect them in order to
establish standing on their own behalf. Morton, 405 U.S. at
735. Plaintiffs cannot meet this burden because the
District’s nondiscrimination policy will not affect FCA’s
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 75
ASB recognition if no student intends to apply for the 2022–
23 year.
2.
FCA has not—and the majority ironically contends that
FCA cannot—identify an FCA club member who intends to
apply for ASB recognition during the upcoming 2022–23
school year. This is so even though this case has been
pending for two years, the motion for a preliminary
injunction has been pending for more than a year, and
discovery has been completed. The only evidence in the
record suggesting that FCA members intend to apply for
ASB recognition comes from declarations and deposition
testimony of FCA National employee Rigoberto Lopez.
First, Lopez’s declarations are hearsay. The majority
applies the general rule that a district court may consider
hearsay in deciding whether to issue a preliminary
injunction. See, e.g., Republic of the Philippines v. Marcos,
862 F.2d 1355, 1363 (9th Cir. 1988) (en banc). The urgency
of obtaining a preliminary injunction sometimes
“necessitates a prompt determination and makes it difficult
to obtain affidavits from persons who would be competent
to testify at trial.” Flynt Distrib. Co. v. Harvey, 734 F.2d
1389, 1394 (9th Cir. 1984). But a court faced with a request
for a preliminary injunction may give inadmissible hearsay
only the weight to which it is entitled, and only when doing
so “serves the purpose of preventing irreparable harm before
trial.” Id.; see Am. Passage Media Corp. v. Cass Commc’ns,
Inc., 750 F.2d 1470, 1473 (9th Cir. 1985) (rejecting
affidavits submitted in support of a motion for a preliminary
injunction because the affidavits were “conclusory and
without sufficient support in facts”). As one of our sister
circuits has explained, the inquiry at the preliminary
injunction stage is not whether the parties’ proffered
76 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
evidence is classified as hearsay, “but whether, weighing all
the attendant factors, including the need for expedition, this
type of evidence was appropriate given the character and
objectives of the injunctive proceeding.” Asseo v. Pan Am.
Grain Co., 805 F.2d 23, 26 (1st Cir. 1986). No such urgency
is present here. Prior to the parties’ joint stipulation
regarding student testimony, FCA had seven months to
support its request for a preliminary injunction with
declarations from its student members. It did not do so.
Nor does the majority question the veracity of Lopez’s
declarations when there are ample reasons to discount them.
The declarations the majority relies upon are dated
September 20, 2021, and May 20, 2022. When Lopez was
deposed in February 2022, he walked back the statements in
his prior declarations. The record does not show that the
District has had an opportunity to depose Lopez after his
most recent May 2022 declaration. Despite concessions
Lopez made in a subsequent deposition that undercut his
declarations, the majority gives the declarations full weight.
Although we may consider hearsay at the preliminary
injunction stage, FCA must make a “clear showing” of
imminent injury. Lopez’s declarations plainly do not satisfy
that threshold.
My colleagues’ suggestions to the contrary ring hollow.
The majority contends that the District cannot fault FCA for
“failing to submit evidence which they agreed not to
require.” As a matter of law, plaintiffs cannot have waived
jurisdiction. And factually, the text of the parties’ pre-trial
stipulation clearly states that the District made “no
admissions, explicit or implied, about what evidence is
necessary, relevant, or admissible in this case.” The
majority’s only support for the notion that the stipulation
was necessary to prevent FCA members from being
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 77
intimidated comes from counsel, not from students.
Plaintiffs’ counsel’s bare assertions that student depositions
“would likely result in the further intimidation of Pioneer
FCA,” and that “FCA-affiliated students are intimidated by
depositions,” are merely speculation.
Even giving some weight to Lopez’s declarations and
deposition testimony, Pioneer FCA does not come close to
demonstrating concrete plans or firm intentions to apply for
ASB recognition for the 2022–23 school year. Lopez’s July
23, 2021 declaration was filed in anticipation of the 2021–
22 school year and it stated that “District students are
interested in leading and participating in FCA clubs, and in
having an ASB-approved, FCA-affiliated student club.” It
did not identify a club member who was ready to apply.
Lopez’s second declaration was prepared shortly after the
2021–22 school year commenced and was dated September
20, 2021. This declaration identified M.H., a Pioneer
freshman and student leader of Pioneer FCA during the
2021–22 school year. Lopez asserted that M.H. “want[ed]
to apply for ASB recognition at Pioneer” for 2021–22, but
that M.H. did not complete the District’s application in light
of the District’s requirement that each applicant affirm
adherence to the District’s nondiscrimination policy.
Lopez’s declaration suggested that M.H. and other Pioneer
FCA leaders, including student N.M., “indicated that they
are intimidated by Defendants’ actions” and “[i]f the Court
grants an injunction allowing Pioneer FCA to have equal
access to ASB recognition without having to give up its
religious leadership standards, Pioneer FCA’s leadership
will apply for ASB recognition.” But when asked at his
deposition whether it was M.H. or Lopez who raised
concerns about the District’s nondiscrimination
requirements, he conceded that these were “concerns,
probably from what I recall, coming more from me.” Also
78 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
during the deposition, the District asked Lopez about the
statement from former Pioneer FCA leader L.W.—who
graduated in June 2021—that future leadership would apply
for ASB recognition for the 2021–22 year. Lopez
responded: “I mean, that’s been their plan as student leaders
since the club has been de-recognized.” Nothing more than
this general assertion appears in the record.
Finally, Lopez’s May 2022 declaration states that N.M.
and another student (B.C.) are the leaders for the 2022–23
school year. M.H. is not mentioned as a current club
member or leader, and this most recent declaration says
nothing at all about whether N.M. intends to apply for ASB
recognition for the upcoming 2022–23 school year.
At best, Lopez’s declarations are based on his
understanding of another person’s intentions, they are
neither detailed nor specific, and, contrary to the majority’s
opinion, they make no representations about whether FCA’s
current student club leaders intend to apply for ASB
recognition for the 2022–23 school year. This is dispositive
because the motion for a preliminary injunction sought only
prospective injunctive relief. Lopez’s statements do not say
“when, . . . where, or under what circumstances” the leaders
of Pioneer FCA will apply for ASB recognition, Thomas,
220 F.3d at 1139, and Lopez provides even less information
than the “some day” intentions that the Court deemed
insufficient in Lujan, 504 U.S. at 564. The only club leader
Lopez identifies as having expressed an intent to apply is
M.H., but the record reflects that she expressed the intent to
do so last year, and didn’t. The record does not tell us why
she decided against applying last year (Lopez admitted that
the concerns raised in his conversation with M.H. about the
District’s Policy were “coming more from me”), and M.H.
is not listed as a club member for the 2022–23 school year.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 79
The majority suggests that this dissent focuses solely on
Lopez’s most recent declaration, and the majority purports
to “know N.M. wants to apply for recognition.” Neither
statement is correct. Even cobbled together, Lopez’s
conclusory statements fall woefully short. Cf. Lujan, 504
U.S. at 564, Rey, 622 F.3d at 1256 (rejecting affidavit with
documented “extensive” use). None of the declarations
identify a student who has expressed an intent to apply for
ASB recognition in 2022–23.
Without a showing that at least one student is ready to
apply, plaintiffs’ repeated assertions merely speculate that
one or more FCA members “will be adversely affected by a
defendant’s action.” Nat’l Council of La Raza v. Cegavske,
800 F.3d 1032, 1041 (9th Cir. 2015); see Lujan, 504 U.S. at
563 (concluding no standing existed when the organization
failed to “submit affidavits . . . showing, through specific
facts . . . that one or more of [its] members would . . . be
‘directly’ affected” by the allegedly illegal activity). It is
plaintiffs’ burden to make a “clear showing” of Article III
standing. They have not done so here.
3.
FCA and the majority next suggest that FCA need not
identify a student member who intends to apply for ASB
recognition because FCA is suffering ongoing harm. They
are mistaken.
A plaintiff seeking prospective relief for ongoing
government harm cannot rely solely upon his speculative
fear of “imminent” government action as a present, ongoing
injury. See, e.g., Munns v. Kerry, 782 F.3d 402, 410 (9th
Cir. 2015). To be sure, a deterrent, or “chilling” effect, on
First Amendment rights can constitute a cognizable injury,
but the chilling cannot be “based on a fear of future injury
80 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
that itself [is] too speculative to confer standing.” Index
Newspapers LLC v. United States Marshals Serv., 977 F.3d
817, 826 (9th Cir. 2020) (citation omitted) (alteration in
original). In Laird v. Tatum, the Supreme Court found that
plaintiffs lacked standing to challenge the Army’s alleged
“surveillance of lawful and peaceful civilian political
activity” because the plaintiffs did not provide any evidence
that they were placed under illegal surveillance. 408 U.S. 1,
2, 9 (1972). The Court rejected affidavits from the Laird
plaintiffs stating that their First Amendment rights were
being “chilled by the mere existence” of the challenged
activity because “[a]llegations of a subjective ‘chill’ are not
an adequate substitute for a claim of specific present
objective harm or a threat of specific future harm.” Id. at
13–14. To rely on allegations of “chill,” a plaintiff bringing
a First Amendment challenge to future government action
must demonstrate his “intention to engage” in conduct
proscribed by the government’s rule and “credible threat” of
adverse government action.” Lopez v. Candaele, 630 F.3d
775, 785 (9th Cir. 2010) (alterations in original) (citation
omitted).
FCA alleges, and the majority agrees, that the District’s
prior actions and hostility frustrated FCA’s mission and
required it to expend resources in the form of staff time and
the cost of legal counsel. The operative complaint includes
allegations of past harm that, if proven, likely state a
cognizable claim for “compensable injury.” But the
majority misses that the remedy for past compensable injury
is damages; a special showing is required prospective
injunctive relief, see Lyons, 461 U.S. at 105, and this relief
is requested pre-trial. The Supreme Court has repeatedly
emphasized that “‘history and tradition offer a meaningful
guide to the types of cases that Article III empowers federal
courts to consider,’” TransUnion LLC v. Ramirez, 141 S. Ct.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 81
2190, 2204 (2021) (quoting Sprint Communications Co. v.
APCC Servs., Inc., 554 U.S. 269, 274 (2008)), and the
majority points to no history or tradition that would warrant
a pre-trial award of prospective injunctive relief in the
circumstances of this case, because: (1) the District instituted
practices to ensure compliance with its nondiscrimination
policy on a going-forward basis, (2) the district court found
no evidence that other clubs are discriminating, (3) the court
found FCA was the only club that failed to affirm
compliance with the nondiscrimination policy, and (4) the
District retains no discretion to make exceptions to the
Policy.
The requested injunction only requires the District to
prospectively recognize FCA’s student groups; in other
words, plaintiffs seek an order granting FCA a reprieve from
the District’s nondiscrimination policy. To the extent FCA’s
mission will be frustrated by the denial of ASB recognition
in the upcoming school year, plaintiffs allege a future injury,
not an ongoing one, because students must apply for ASB
recognition each school year. As explained in detail, this
record does not establish that FCA’s members will apply for
recognition. In keeping with binding precedent, we should
hold that FCA’s theory of direct organizational standing is
impermissibly speculative.
FCA’s argument that its members face ongoing injury is
similarly defective. Lopez’s conclusory declarations assert
that FCA members are intimidated and fearful of applying
for ASB recognition “without a change” in the District’s
Policy, but that assertion did not hold up under cross-
examination. FCA pivots to argue that its members will be
harmed by FCA’s prior derecognition, and that an injunction
requiring the District to recognize its student club would
redress that past injury. But that theory fails both for lack of
82 FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE
factual support showing intent to apply or intimidation, and
for lack of legal support. See Lopez, 630 F.3d at 785(explaining that a plaintiff bringing a First Amendment pre-
enforcement challenge to a government rule cannot show
that his rights are currently “chilled” unless he demonstrates
his intent to violate the government’s rule). Because FCA
does not establish that any FCA member intends to apply for
ASB recognition, its argument that FCA members face
present and ongoing injury is based on speculative future
harm and is insufficient to confer Article III standing to
pursue prospective injunctive relief.
D.
My colleagues are correct that the competing values at
issue in this case are cherished by our nation and enshrined
in our Constitution. The plaintiffs will surely have their day
in court for their claims of past harm. Once they do, the court
will have to consider both the plaintiffs’ rights and the rights
of those they would exclude. Notably, the majority offers no
limiting principle to the permission it grants allowing one
club to discriminate. In the meantime, we are not free to
contort our standing jurisprudence in order to prematurely
reach the merits and we ought not do so in a case of this
magnitude before the record has been developed and tested.
Discovery in this case is closed, and FCA’s proof of
standing comes entirely from the operative complaint and
Lopez’s statements, which are conclusory and not based on
his personal knowledge. No student has been identified who
either intends to apply for ASB recognition or would apply
in the absence of the District’s Policy, and the parties’
stipulation forecloses any student testimony of this kind.
There are many reasons the students may have decided not
to apply last year and have not declared an intent to apply
FELLOWSHIP OF CHRISTIAN ATHLETES V. SJUSD BOE 83
this year. With no statement from the students, the district
court was left to guess.
In light of the posture of this case, controlling precedent
requires that we dismiss FCA’s appeal for lack of Article III
standing.
For these reasons, I respectfully dissent.