Fellowship of Christian Athletes v. San Jose Unified School District Board of Educatio ( 2023 )

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 4:20-cv-02798-
PIONEER HIGH SCHOOL, an HSG
unincorporated association;
CHARLOTTE KLARKE;
ELIZABETH SINCLAIR, OPINION
Plaintiffs-Appellants,
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.
2 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted En Banc March 23, 2023
Pasadena, California
Filed September 13, 2023
Before: Mary H. Murguia, Chief Judge, and Consuelo M.
Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Mark J.
Bennett, Eric D. Miller, Bridget S. Bade, Daniel A. Bress,
Danielle J. Forrest, Patrick J. Bumatay and Jennifer Sung,
Circuit Judges.
Opinion by Judge Callahan;
Concurrence by Judge Forrest;
Partial Concurrence and Partial Dissent by Judge M. Smith;
Partial Concurrence and Partial Dissent by Judge Sung;
Dissent by Chief Judge Murguia
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 3
SUMMARY*
First Amendment/Free Exercise Clause
The en banc court reversed the district court’s denial of
a motion for a preliminary injunction in an action brought by
the Fellowship of Christian Athletes (FCA) and others
against the San Jose Unified School District (the District) for
violation of FCA’s First Amendment rights to free exercise
of religion and free speech, and directed the district court to
enter an order reinstating FCA’s recognition as an official
Associated Student Body (ASB) approved student club.
FCA requires its student leaders to affirm a Statement of
Faith, which includes the belief that sexual relations should
be within the confines of a marriage between a man and a
woman. The San Jose Unified School District revoked
FCA’s status as an official student club for violation of the
District’s non-discrimination policies.
The en banc court held that the District’s Pioneer High
School FCA had representational organizational standing
and its claims for prospective injunctive relief were not
moot, given that at least one student intended to apply for
ASB recognition in the coming school year but had been
discouraged by the District’s policies. FCA National had
organizational standing and its claims were not moot
because the District’s actions frustrated FCA National’s
mission and required it to divert organizational resources,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
which it would continue to do in order to challenge the
District’s policies.
The en banc court next held that the district court erred
in applying a heightened standard applicable to mandatory
injunctions. Because FCA’s motion for a preliminary
injunction sought to maintain the status quo under which it
had been granted ASB recognition for nearly 20 years, the
relief sought was properly characterized as a prohibitory
injunction.
Addressing the merits of FCA’s First Amendment’s Free
Exercise Clause claim, the en banc court stated that to avoid
strict scrutiny, laws that burden religious exercise must be
both neutral and generally applicable. A purportedly neutral
“generally applicable” policy (1) may not have a mechanism
for individualized exemptions; (2) may not treat comparable
secular activity more favorably than religious exercise; and
(3) must not be hostile to religious beliefs.
The en banc court held that the District’s
nondiscrimination policies, including its more recently
enacted “All Comers Policy,” which prohibits all ASB clubs
from enacting discriminatory membership and leadership
criteria, were not generally applicable, and therefore subject
to strict scrutiny. The District (1) retained discretion to grant
individualized exemptions and did so in a viewpoint-
discriminatory manner, (2) treated comparable secular
activity more favorably than religious exercise, and (3)
penalized FCA based on its religious beliefs.
To pass strict scrutiny, the District’s policies must be
narrowly tailored to advance a compelling government
interest. Because the District failed to offer any showing that
it considered less restrictive measures, it fails the tailoring
prong of the strict scrutiny test. Accordingly, the en banc
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 5
court held that FCA and the other plaintiffs demonstrated a
likelihood of success on the merits of their Free Exercise
claims. The remaining preliminary injunction factors also
supported granting the requested injunctive relief.
Concurring, Judge Forrest agreed that FCA was entitled
to a preliminary injunction but wrote separately because she
viewed this case as raising more of a free speech rather than
a religious-freedom issue and therefore would resolve the
case under the Equal Access Act and the Free Speech Clause
of the First Amendment. Judge Forrest would not address
direct organizational standing because FCA’s chapter at
Pioneer High School had standing to represent its members
in this action.
Concurring in part and dissenting in part, Judge M.
Smith, with whom Chief Judge Murguia and Jung Sung join
with respect to Part II, agreed that the plaintiffs were entitled
to a preliminary injunction because the District treated
religious activities differently than secular ones, but wrote
separately because the majority opinion swept well beyond
what was needed to resolve this case. Judge M. Smith
dissented as to the majority’s holding in a footnote that
plaintiffs would be likely to succeed on a facial challenge to
the District’s All-Comers Policy under the Free Speech
Clause.
Concurring in part and dissenting in part, Judge Sung
agreed with the majority that Pioneer FCA has
representational standing but stated that FCA National did
not have direct organizational standing to pursue prospective
injunctive relief for the reasons stated by Chief Judge
Murguia in her dissent. On the merits, Judge Sung
concluded that the district court did not abuse its discretion
in refusing to enjoin the District from uniformly applying its
6 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
nondiscrimination policy to student groups in the then-
upcoming school year, for the reasons stated by Chief Judge
Murguia in her dissent.
Dissenting, Chief Judge Murguia with whom Judge
Sung joined with respect to Parts I, II.B, II.C.2, III.A, III.B,
and IV (except for the last sentence), would dismiss this
appeal because plaintiffs failed to make the necessary “clear
showing” of Article III standing for prospective injunctive
relief. Plaintiffs failed to establish that any District student
sought ASB recognition for an FCA club for the 2021-22
school year or intended to apply for ASB recognition during
the then-upcoming 2022–23 school year or would do so if
the District’s non-discrimination policies were
enjoined. Briefly addressing the merits, Chief Judge
Murguia stated that (1) the District’s All-Comers Policy did
not formally provide the District with discretion to grant
exceptions; (2) the record did not support a finding that the
District selectively enforced its Policy only against FCA;
and (3) the majority made both legal and factual errors in
finding that the Policy was not neutral.
COUNSEL
Daniel H. Blomberg (argued), Eric S. Baxter, Nicholas R.
Reaves, Abigail E. Smith, James J. Kim, Becket Fund for
Religious Liberty, Washington, D.C.; Kimberlee W. Colby,
Christian Legal Society, Center for Law & Religious
Freedom, Fairfax, Virginia; Christopher J. Schweickert,
Seto Wood & Schweickert LLP, Pleasant Hill, California;
for Plaintiffs-Appellants.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 7
Stacey M. Leyton (argued) and Stephen Berzon, Altshuler
Berzon LLP, San Francisco, California; Richard B. Katskee
and Kenneth D. Upton Jr., Americans United for Separation
of Church and State, Washington, D.C.; Amy R. Levine and
William Tunick, Dannis Woliver Kelley, San Francisco,
California; Andrea A. Brott, Law Offices of Andrea A.
Brott, Berkeley, California; for Defendants-Appellees.
Christopher E. Mills, Spero Law LLC, Mount Pleasant,
South Carolina, for Amici Curiae Campus Crusade for
Christ Inc., InterVarsity Christian Fellowship/USA, Young
Life, Ratio Christi, and The Navigators.
Bradley J. Lingo, J. Alex Touchet, Robertson Center for
Constitutional Law, Regent University School of Law,
Virginia Beach, Virginia; Michael G. Schietzelt Jr., Wake
Forest, North Carolina; for Amicus Curiae Robertson Center
for Constitutional Law.
Peter M. Torstensen Jr., Assistant Solicitor General; David
M.S. DeWhirst and Christian B. Corrigan, Solicitors
General; Austin Knudsen, Attorney General of Montana;
Montana Department of Justice, Helena, Montana; Kathleen
L. Smithgall, Associate Solicitor, Consovoy McCarthy
PLLC, Arlington, Virginia; for Amicus Curiae State of
Montana and 22 Other States.
Eduardo E. Santacana, Willkie Farr & Gallagher LLP, San
Francisco, California; Kathryn Joseph, Director of Policy &
Advocacy, Interfaith Alliance Foundation, Washington,
D.C.; for Amicus Curiae Interfaith Alliance Foundation.
Cynthia F. Crawford and Casey Mattox, Americans for
Prosperity Foundation, Arlington, Virginia, for Amicus
Curiae Americans for Prosperity Foundation and Professor
Luke C. Sheahan.
8 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
Howard Slugh, Jewish Coalition for Religious Liberty,
Washington, D.C., for Amicus Curiae Jewish Coalition for
Religious Liberty.
Kelly J. Shackleford, Jeffrey C. Mateer, David J. Hacker,
Jeremiah G. Dys, Ryan N. Gardner, and Keisha T. Russell,
First Liberty Institute, Plano, Texas; Kayla A. Toney, First
Liberty Institute, Washington, D.C.; for Amici Curiae D.B.,
Hannah Thompson, and Jacob Estell.
Anthony J. Dick, Harry S. Graver, and Ryan M. Proctor,
Jones Day, Washington, D.C., for Amicus Curiae Professor
Michael W. McConnell.
Ronald G. London, Foundation for Individual Rights and
Expression, Washington, D.C.; Abigail E. Smith,
Foundation for Individual Rights and Expression,
Philadelphia, Pennsylvania; for Amicus Curiae Foundation
for Individual Rights and Expression.
Joseph R. Rose, Gibson Dunn & Crutcher LLP, San
Francisco, California; Jun Nam, Gibson Dunn & Crutcher
LLP, Palo Alto, California; Blaine H. Evanson, Gibson
Dunn & Crutcher LLP, Irvine, California; for Amici Curiae
Cardinal Newman Society and Christian Medical & Dental
Associations.
Emily Martin, Sunu Chandy, Phoebe Wolfe, Auden Perino,
and Hunter Iannucci, National Women’s Law Center,
Washington, D.C.; Courtney M. Dankworth, Harold W.
Williford, Joshua N. Cohen, and Isabelle M. Canaan,
Debevoise & Plimpton LLP, New York, New York; for
Amici Curiae National Women’s Law Center and Twenty-
One Additional Organizations.
Mark Bresee, Alyssa Ruiz de Esparza, Juliana Duran,
Atkinson Andelson Loya Ruud & Romo, La Jolla,
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 9
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.
John J. Bursch and J. Caleb Dalton, Alliance Defending
Freedom, Washington, D.C.; David A. Cortman, Alliance
Defending Freedom, Lawrenceville, Georgia; Tyson C.
Langhofer, Alliance Defending Freedom, Lansdowne,
Virginia; for Amici Curiae Ratio Christi and Chi Alpha.
OPINION
CALLAHAN, Circuit Judge:
Anti-discrimination laws undeniably serve valuable
interests rooted in equality, justice, and fairness. And in a
pluralistic society, these laws foster worthy goals such as
inclusion and belonging. The Constitution also protects the
right for minorities and majorities alike to hold certain views
and to associate with people who share their same values.
Often, anti-discrimination laws and the protections of the
Constitution work in tandem to protect minority views in the
face of dominant public opinions. However, this appeal
presents a situation in which the two regrettably clash.
The Fellowship of Christian Athletes (FCA or FCA
National), as its name suggests, is a ministry group formed
for student athletes to engage in various activities through
their shared Christian faith. FCA holds certain core religious
beliefs, including a belief that sexual intimacy is designed
only to be expressed within the confines of a marriage
between one man and one woman. In order for FCA to
10 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
express these beliefs, it requires students serving in a
leadership capacity to affirm a Statement of Faith and to
abide by a sexual purity policy. Because of these religious
beliefs, however, the San Jose Unified School District
(District) revoked FCA’s status as an official student club on
multiple campuses for violation of the District’s non-
discrimination policies.
While it cannot be overstated that anti-discrimination
policies certainly serve worthy causes—particularly within
the context of a school setting where students are often
finding themselves—those policies may not themselves be
utilized in a manner that transgresses or supersedes the
government’s constitutional commitment to be steadfastly
neutral to religion. Under the First Amendment’s protection
of free exercise of religion and free speech, the government
may not “single out” religious groups “for special disfavor”
compared to similar secular groups. Kennedy v. Bremerton
Sch. Dist., 142 S. Ct. 2407, 2416 (2022).
The District, rather than treating FCA like comparable
secular student groups whose membership was limited based
on criteria including sex, race, ethnicity, and gender identity,
penalized it based on its religious beliefs. Because the
Constitution prohibits such a double standard—even in the
absence of any motive to do so—we reverse the district
court’s denial of FCA’s motion for a preliminary injunction.
I.
Founded in 1954, FCA is an international Christian
religious ministry organization with more than 7,000 student
chapters (also known as “huddles”) in middle schools, high
schools, and colleges across the United States. FCA seeks
to equip “student athletes from all backgrounds for
fellowship, spiritual growth, and service on their campuses.”
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 11
FCA’s “vision [is] ‘to see the world transformed by Jesus
Christ through the influence of coaches and athletes,’ and its
mission [is] ‘to lead every coach and athlete into a growing
relationship with Jesus Christ and His church.’” To further
these goals, FCA clubs regularly meet to host religious
discussions, service projects, prayer times, worship, and
Bible studies.
FCA “welcome[s] all students to participate in the[se]
events.” FCA “also welcome[s] all students to join [its
ranks] as members.” However, FCA requires its student
leaders to affirm certain core religious beliefs identified in
FCA’s Statement of Faith. Included in these core tenets of
FCA’s Statement of Faith is the belief in the authority of the
Bible, the virgin birth, the death and resurrection of Jesus,
the ministry of the Holy Spirit, and God’s design for
marriage. In particular, one portion of the Statement of Faith
calls upon student leaders to affirm a belief that sexual
intimacy may only be enjoyed within the context of
marriage, and more specifically, between one man and one
woman:
We believe God’s design for sexual intimacy
is to be expressed only within the context of
marriage, that God created man and woman
to complement and complete each other. 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.
12 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
As part of FCA’s Christian Character and Mission,
student leaders must also conform to FCA’s Sexual Purity
Statement. The 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.
FCA asks its student leaders to embrace and affirm these
beliefs because it “helps [FCA] keep Jesus Christ the center
of [its] ministry with a clear understanding of what [FCA]
believe[s].” According to FCA, student leaders’ adherence
to this “higher standard of biblical lifestyle and conduct” is
“vitally important to the credibility and effectiveness of each
FCA chapter’s ministry.” FCA contends that if its student
leaders acted contrary to these beliefs, it “would compromise
the integrity of the group and the leaders, undercut the
group’s mission and message, and harm [FCA’s] ability to
express [its] Christian beliefs.”
FCA leadership positions are open to all students as long
as the student “sincerely affirm[s] FCA’s Statement of Faith
and its standards of conduct.”
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 13
A.
In the District, student-run organizations can apply for
recognition as part of the District’s Associated Student Body
(ASB) program. The purpose of the ASB “program is to
give students practice in self-governance, [to] provide social
and recreational activities, to honor outstanding student
achievement, [and] to enhance school spirit and student
sense of belonging.” The District also views the ASB
program as “an appropriate venue for students to learn how
to be leaders; how to engage with some of the democratic
principles that align with their own personal interests; how
to be members of a community; [and] how to be welcoming
and inclusive.” The District recognizes ASB clubs founded
on a wide variety of common viewpoints. Some examples
of the many ASB-recognized clubs in the District include:
Bachelor Nation, Chess Club, Communism Club, Girls Who
Code, Harry Potter Club, K-Pop Club, Mock Trial, and Ping
Pong Club.
Each year, student organizations must submit
applications for ASB approval, which the District and school
officials ultimately grant or deny. Student organizations
seek ASB recognition for the many benefits that it confers
upon the club. For instance, ASB-recognized clubs enjoy
important recruiting tools such as inclusion in the official
club list and the student yearbook, access to ASB financial
accounts and ASB-sanctioned fundraisers, an official
campus faculty advisor, and priority access to meeting
spaces on campus.
Since the early 2000s, FCA chapters enjoyed ASB
recognition in three District high schools, including Pioneer
High School (Pioneer). From that time until the events
giving rise to this lawsuit in 2019, no student ever
14 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
complained to the District that he or she wanted to hold a
leadership position in an FCA chapter but was ineligible
because of FCA’s religious requirements. And until the
controversy arose in 2019, there is no evidence any student
in the District ever complained that he or she felt excluded
by FCA’s religious beliefs. In sum, FCA chapters enjoyed
controversy-free ASB recognition in the District for nearly
two decades.
B.
In April 2019, a teacher at Pioneer, Peter Glasser,
obtained copies of FCA’s Statement of Faith and Sexual
Purity Statement from students in the school. Glasser
viewed these statements to contain “objectionable” “moral
stances” on marriage and sexuality. Glasser felt he “had to
react right away” to these viewpoints “because any delay in
[his] response could have been interpreted as agreement, or
even worse, apathy.” So, before his first period class,
Glasser posted the FCA statements on his whiteboard with a
note: “I am deeply saddened that a club on Pioneer’s campus
asks its members to affirm these statements. How do you
feel?”
According to Glasser, he did not realize that two FCA
officers were present in his first period class. Those students
felt “insulted” and deeply hurt that Glasser did not speak
with them privately before broadcasting his message on the
board to the class. During a break between classes, an FCA
officer approached Glasser to inform him that his note was
incorrect, and that only officers––not members––were
required to “sign that pledge.” And the next day, another
FCA officer told him that the statement was inaccurate and
did not reflect the version used by the local FCA chapter.
Based at least in part on these interactions, FCA officers
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 15
asked for Glasser to include their faculty advisor in future
conversation with him.
In addition to his whiteboard note, Glasser sent an email–
–attaching FCA’s Statement of Faith and Sexual Purity
Statement––to Pioneer Principal Herb Espiritu and two other
faculty members. Glasser asked if they “were aware of the
pledge that . . . [FCA] requires of its members” and noted
one of his students was “very upset about the anti-gay
prerequisites for membership/officership.” Principal
Espiritu responded that he was “not aware of this pledge”
and that he would “discuss this with the admin team and
follow up with the club leadership as necessary.”
A week after he sent his initial email, Glasser sent a
follow up email to Principal Espiritu on April 29, 2019. By
this point, the controversy surrounding FCA had grown, and
as Glasser put it in his email: “we move right to the question
of whether [FCA’s] views need to be barred from a public
high school campus.” While he initially stated he was
“ambivalent” on that question, Glasser concluded that based
on the need to express support “for all LGBTQ+ kids and
their friends and allies” on campus, it was necessary to
discuss the issue “head on.” Below are some of Glasser’s
thoughts on FCA’s views:
We’ve discussed before how I believe that
our campus needs to grow dramatically in our
treatment of gender identity, and for me, this
FCA issue is the straw (lead pipe, really) that
broke the camel’s back. In so many ways, I
feel that there’s only one thing to say that will
protect our students who are so victimized by
religious views that discriminate against
them: I am an adult on your campus, and
16 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
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 the enabler for this kind
of “religious freedom” anymore. LGBTQ+
kids, you deserve to have your dignity
defended by the adults around you.
While Glasser did express some concern that “great
students” in FCA could be “collateral damage,” and he did
not “want people to feel attacked for their views,” he
explained that “part of me thinks that attacking these views
is the only way to make a better campus.”
The following day, April 30, 2019, the Pioneer “Climate
Committee,” a school leadership committee composed of
several school department chairs (including Glasser) and
administrators, convened to discuss the controversy
surrounding FCA. As the meeting minutes reflect, Principal
Espiritu and the Climate Committee agreed that FCA’s
“pledge” clashed with the “core values of [Pioneer High
School] [such as] inclusive[ness] [and] open-mindedness.”
Principal Espiritu also noted the “need to take a united stance
as [a] committee.” After the meeting, Principal Espiritu
brought the Climate Committee’s concerns about FCA to the
District administrators’ attention.
Two days after the Climate Committee meeting, on May
2, 2019, Principal Espiritu informed the student leaders of
Pioneer FCA that the District had decided to strip the club of
its ASB approval. In a comment for a column posted in
Pioneer’s school newspaper, The Pony Express, Principal
Espiritu was quoted as stating: “The pledge is of a
discriminatory nature. We decided that we are no longer
going to be affiliated with them.” Principal Espiritu later
testified that he did not speak with any FCA representatives
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 17
to verify or confirm the specific prerequisites for FCA
leadership before stripping the club of recognition. Rather,
Principal Espiritu testified that it was “sufficient to deny
ASB approval” “simply because the sexual purity statement
existed” and that “FCA holds” those beliefs.
In essence, based on the documents provided to Glasser
and the discussion of the Climate Committee, the District
concluded that because “a student could not be an officer of
[FCA], if they were homosexual,” FCA had violated the
District’s “Non-Discrimination Policy.”1
FCA’s derecognition marked the first time any club at
Pioneer had gained and then lost ASB approval without the
club itself choosing to revoke its application before
completion of the application process. According to
Pioneer’s ASB Activities Director, Michelle Mayhew, the
school administrators granted approval to all clubs that
applied. Once a student club gained ASB approval, it would
only undergo additional scrutiny if any issues were brought
to the attention of the administration. After FCA’s
derecognition, the District allowed Pioneer FCA to remain
on campus as an unaffiliated “student interest group” that did
not enjoy many of the benefits of the ASB program. FCA
was the only student group at Pioneer that fell into this
1
The Nondiscrimination In District Programs and Activities policy,
(Board Policy 0410) provides in relevant part:
District programs, . . . 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 such characteristics.
18 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
category. Principal Espiritu testified that he allowed FCA to
meet on campus because of his obligations under the Equal
Access Act (EAA),2 and that based on those obligations, he
would have done the same “[i]f they wanted to have a KKK
meeting.”
C.
Although FCA was no longer an ASB-recognized group,
some teachers expressed concern that FCA was still able to
remain on campus as a student interest group. For example,
in an email to two other teachers, Jason Goldman-Hall, the
faculty advisor for The Pony Express, referred to a student
reporter who “fe[lt] bad for FCA” as an “idiot” who was
“dragging her feet” for not immediately interviewing other
teachers involved with the Gender and Sexuality Alliance
(GSA)3 student club. Danni McConnell, a history teacher
and faculty advisor for the GSA student club, stated in a
Pony Express article that “[i]t’s unfortunate that there is an
organization on campus that subscribes to a national
organization that has these beliefs.” McConnell called it “a
hurtful message and problem” and urged students to “rally[]
against the issue.”
2
The EAA prohibits public secondary schools that receive federal funds
and create a limited open public forum (which occurs when the school
grants official recognition to student-organized clubs) from denying any
student club equal access to that forum “on the basis of the religious,
political, philosophical, or other content of the speech at [a club’s]
meetings.” 20 U.S.C. § 4071(a)–(b); see also Bd. of Educ. of Westside
Cmty. Sch. v. Mergens, 496 U.S. 226, 235, 247 (1990).
3
According to the record, when Glasser helped found this club on
Pioneer’s campus in 2002, it was referred to as the Gay-Straight
Alliance.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 19
In July 2019, Glasser sent Principal Espiritu an email
questioning whether they could “ban FCA completely from
campus,” and asking if the school could find that “FCA
violates [the District’s] sexual harassment policy” such that
it would not be shielded by any equal access laws. Before
the start of the new school year, Glasser sent Principal
Espiritu a follow up email noting he was “eager to get a
status update” on FCA and for the Climate Committee “to
talk about next steps” to “determine if [the District’s] sexual
harassment policy could be used.”
D.
For the 2019–2020 school year, FCA applied for but was
denied ASB recognition. However, another club––the
Satanic Temple Club––was formed and was granted ASB
approval. The Satanic Temple Club’s leadership (including
one student who initially brought FCA’s Statement of Faith
to Glasser’s attention) asked Glasser to serve as the club’s
faculty advisor. Glasser declined, noting he viewed it as
intending to “mock” FCA, and that he wanted to avoid
“compromis[ing] [his] credibility” surrounding FCA.
However, another faculty member and member of the
Climate Committee, Michelle Bowman, agreed to serve as
its faculty advisor. Bowman, when later emailed by one of
her former students about the Satanic Temple Club and its
role in the controversy surrounding FCA, encouraged the
former student to speak and responded:
Out of context, your club sounds fierce, but
we know it’s not. [FCA] still exists on
campus. It has not been denied recruitment.
It’s published on the Pioneer website. The
lawsuit comes from their national
organization. We live in polarized times.
20 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
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. Talk about
twisting the truth . . . and the sad thing is that
they probably believe they are victims.
Bowman concluded her response by saying: “Get your voice
out there. Slander is unacceptable. They choose darkness
over knowledge and they perpetuate ignorance.”
In September 2019, some Pioneer students expressed an
interest in protesting FCA in an organized fashion and
distributed flyers4 announcing the protest. After a few weeks
of some discussion of mediation, attempts to find
alternatives, and efforts by school officials to discourage the
protestors, the students ultimately came to the conclusion
that the protest was necessary to “express [their]
dissatisfaction” with the “discriminatory message
indoctrinated in an educational environment that’s supposed
4
The flyers stated:
Did you Know?
Every leader of the Fellowship of Christian Athletes
has to agree that same-sex marriage and homosexual
sex are morally wrong.
Disagree with this?
Join the protest!
Wednesdays at lunch outside room 360
Signs will be provided. The aim of this protest is not
to alienate any member of the FCA or create hostility
but rather to educate the school about the regional
organization’s polices.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 21
to be a safe space for everyone.” On October 23, 2019,
students gathered outside an FCA meeting in protest,
holding signs with slogans such as “HATRED ISN’T A
RELIGIOUS BELIEF.” These protests were reported in The
Pony Express and photos of the protestors were posted on
the newspaper’s Instagram account.
At an FCA meeting in November 2019, two student
reporters from The Pony Express attended to take photos.
According to one teacher who observed, the photographers
took “well over 300 photos,” often within five feet of the
person’s face they were photographing. And each time a
new student at the meeting spoke, the photographers would
go over and take 25 photos in close proximity. In an email
from a teacher alerting Principal Espiritu to this activity, the
teacher characterized it as “intimidating,” “flat out
bullying,” and stated that “[i]t did not feel like a safe
environment.” The teacher noted that he had “never seen a
club, sports team, or class so targeted.”
At an FCA meeting in December 2019, a group of 15 to
25 students participated in a protest organized by the GSA
club. Due to the potential for unrest, there was at least one
security officer present, and some protestors were apparently
barred entry to the auditorium. According to one teacher
who attended, Channel Sulc, it was not true that students
were barred for being hostile; however, students held signs
for the duration of the meeting. In her comments to The
Pony Express, Sulc stated that, according to the protestors,
there was a greater need to “create a safer and more
accepting community for all,” which required that “FCA not
hold events on campus” or that FCA “reassess” its core
beliefs.
22 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
At an FCA event in February 2020, one protestor
associated with the “student newspaper, entered and was
disruptive.” According to the paper’s faculty advisor,
Goldman-Hall, the student reporter was caught on video
“verbally abusing” FCA members. In his email to Principal
Espiritu, Goldman-Hall noted that the newspaper had
“irreparably compromised” its objectivity on FCA and
would no longer cover FCA as a result.
According to one FCA officer, there were protests at
every “regular” FCA meeting and at “any [FCA] club
activity or event” during the 2019–2020 school year.
E.
In spring 2020, the COVID-19 pandemic halted all
student club activity on campus, and club activity did not
reconvene in person until April 2021. For the 2020–2021
school year, Pioneer granted all clubs, including FCA,
provisional ASB approval.
In April 2020, two FCA student leaders at Pioneer,
Charlotte Klarke and Elizabeth Sinclair5 and FCA National
filed suit against the District and several school officials
including Principal Espiritu and Glasser. After motion
practice, Klarke, Sinclair, FCA National, and the local
chapter at Pioneer (Pioneer FCA) (collectively, Plaintiffs)
filed their operative third amended complaint in July 2021.
Plaintiffs brought claims for relief for: (1) equal access to
extracurricular school clubs under the Equal Access Act
(EAA), 20 U.S.C. §§ 4071–4074; (2) Free Speech,
5
Klarke and Sinclair had first sued under their initials to avoid
harassment, but the district court ordered their names to be disclosed at
the District’s request, ruling that “harassment at their high school . . .
ended when [they] graduated in June 2020.”
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 23
Expressive Association, and Free Exercise of Religion under
the First Amendment; and (3) Equal Protection under the
Fourteenth Amendment. On July 30, 2021, 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.” Defendants 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.
F.
In response to the ongoing litigation, the District adopted
a new version of its non-discrimination policy for the 2021–
2022 school year emphasizing the need for more training on
student club membership and leadership requirements. The
new non-discrimination requirements in the “All-Comers
Policy” were applicable to “all individuals in the District
programs and activities,” including “[a]ll ASB recognized
student groups,” and the ASB program, and the District. The
central feature of the new All-Comers Policy “require[d]
ASB recognized student groups to permit any student to
become a member or leader, if they meet non-discriminatory
criteria.” In order to gain or retain ASB approval, the student
club officers had to sign a statement affirming the club
would: “allow any currently enrolled student at 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.” According to the Student Organization
Guidelines (the guidelines), the new All-Comers Policy was
to “be implemented and construed in accordance with the all
comers policy considered by the Supreme Court” in
Christian Legal Society Chapter of the University of
24 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
California, Hastings College of Law v. Martinez
[(Martinez)], 561 U.S. 661 (2010).
While the All-Comers Policy prevented ASB clubs from
enacting discriminatory membership and leadership criteria,
the guidelines carved out several exceptions. According to
the guidelines, ASB clubs could “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 “non-discriminatory criteria.” Instead, school
officials rely on “common sense” and enforce the
requirements on a case-by-case basis.
Despite the All-Comers Policy, schools in the District
were allowed to maintain—or even themselves sponsor—
clubs with facially discriminatory membership
requirements. For example, the Senior Women club retained
approval even though it was open only to “seniors who
identify as female.” Likewise, the South Asian Heritage
club could “prioritize” acceptance of south Asian students.
Indeed, Michelle Mayhew, Pioneer’s Activities Director,
acknowledged that other groups could limit their
membership. For example, she agreed that “the Interact club
could continue to require that its members or its leaders
demonstrate good moral character or show leadership
ability.” She also suggested that the Republican student club
[could] become ASB approved even if it required “club
leaders . . . [to] support the Republican platform.” Similarly,
Mayhew also agreed the Girls’ Circle could “still limit their
membership to students who are female identifying.”
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 25
After implementation of the All-Comers Policy, no FCA
club applied for ASB recognition in the District for the
2021–2022 school year. According to FCA’s regional
director in the Bay Area, Rigoberto Lopez, student leaders
at Pioneer would have applied for ASB recognition but did
not because 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 were correct. In the District’s view, FCA’s
Statement of Faith violates the All-Comers Policy on two
grounds. First, the requirement that leaders “affirm a belief
in Christianity” improperly excluded students of other faiths
or non-religious students. Second, the requirement that
leaders “affirm that marriage is exclusively the union of one
man and one woman” improperly excluded “homosexual
students or those who affiliate with homosexual parents.”
Principal Espiritu testified that Pioneer FCA could not gain
ASB approval under the All-Comers Policy with its existing
leadership requirements.
II.
In June 2022, the district court denied the Plaintiffs’
motion for a preliminary injunction. The district court found
that Plaintiffs were requesting a “mandatory preliminary
injunction” and therefore applied a “heightened standard”
required for issuance. Applying that standard, the district
court concluded that Plaintiffs failed to show the “facts and
law clearly favor” their likelihood of success on the merits.
First, the district court held that the All-Comers Policy,
as written, was unlikely to violate Plaintiffs’ rights.
Applying a limited public forum analysis as set forth in
Martinez, the district court concluded that Plaintiffs were
unlikely to prevail on their free speech and expressive
26 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
association claims because the All-Comers Policy was
content- and viewpoint-neutral under existing Ninth Circuit
law. The district court similarly found that Plaintiffs were
unlikely to prevail on their Free Exercise claims because the
All-Comers Policy was generally applicable and only
incidentally burdened religion. In addition to Plaintiffs’
constitutional claims, the district court likewise found
Plaintiffs were unlikely to prevail on their EAA claim
because the All-Comers Policy was “content-neutral
because it does not preclude religious speech but rather
prohibits acts of discrimination.”
Second, the district court held that Plaintiffs were
unlikely to show the All-Comers Policy, as applied, violated
their rights. Specifically, the district court rejected
Plaintiffs’ argument that the All-Comers Policy contained a
formal mechanism to grant discretionary exceptions that ran
afoul of Fulton v. City of Philadelphia, 141 S. Ct. 1868
(2021). Lastly, the district court found that Plaintiffs failed
to show clear selective enforcement of any of the non-
discrimination policies.
Plaintiffs timely appealed the district court’s denial of
the motion for a preliminary injunction. A divided three-
judge panel reversed, directing the district court to enter a
preliminary injunction against the District ordering it to
recognize student groups affiliated with FCA. Fellowship of
Christian Athletes v. San Jose Unified Sch. Dist. Bd. of
Educ., 46 F.4th 1075, 1099 (9th Cir. 2022). Judge Lee, who
authored the majority opinion, also wrote separately “to
highlight the depth” of the District’s animus towards the
students’ religious beliefs. Id. at 1099–1100 (Lee, J.,
concurring). Judge Christen, dissenting, wrote that the
majority impermissibly reached the merits of the case
because Plaintiffs could not establish Article III standing and
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 27
the case should be dismissed for lack of jurisdiction. Id. at
1103 (Christen, J., dissenting).
After the District petitioned for rehearing en banc, a
majority of active judges voted to rehear the case.
Fellowship of Christian Athletes v. San Jose Unified Sch.
Dist. Bd. of Educ., 59 F.4th 997, 998 (9th Cir. 2023). The en
banc court heard argument on March 23, 2023. On April 3,
2023, a majority of the en banc court issued an injunction
pending resolution of the appeal, ordering Defendants-
Appellees in the interim to recognize student chapters
associated with FCA as officially ASB-approved. See
Fellowship of Christian Athletes v. San Jose Unified Sch.
Dist. Bd. of Educ., 64 F.4th 1024, 1025 (9th Cir. 2023).
We review the district court’s denial of a preliminary
injunction for an abuse of discretion. Olson v. California,
62 F.4th 1206, 1218 (9th Cir. 2023). A district court abuses
its discretion when it utilizes “an erroneous legal standard or
clearly erroneous finding of fact.” All. for the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting
Lands Council v. McNair, 537 F.3d 981, 986 (9th Cir. 2008)
(en banc)). A factual finding is clearly erroneous if it is
“illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.” M.R. v. Dreyfus,
697 F.3d 706, 725 (9th Cir. 2012) (quoting United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)).
Applying these standards, we reverse.
III.
Although Defendants’ motion to dismiss in part for lack
of standing remains pending before the district court, we
have an independent obligation to consider standing at all
28 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
stages because it is an Article III jurisdictional requirement.6
See United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir.
1997); see also Hernandez v. Campbell, 204 F.3d 861, 865
(9th Cir. 2000) (per curiam) (“Federal courts are always
under an independent obligation to examine their own
jurisdiction.” (cleaned up)). “[T]he standing inquiry . . . [is]
focused on whether the party invoking jurisdiction had the
requisite stake in the outcome when the suit was filed.”
Davis v. FEC, 554 U.S. 724, 734 (2008); see also Morongo
Band of Mission Indians v. Cal. State Bd. of Equalization,
858 F.2d 1376, 1380 (9th Cir. 1988).
Since the filing of this action, the two individual
plaintiffs in this action, Charlotte Klarke and Elizabeth
Sinclair, have graduated from Pioneer High School.
Accordingly, their claims for prospective injunctive relief
were previously dismissed as moot. Thus, we must
determine whether either Pioneer FCA or FCA National had
standing as of April 22, 2020, when the complaint was filed.
See 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 standing of each
plaintiff if it concludes that one plaintiff has standing.”).
“[T]he irreducible constitutional minimum of standing”
consists of three elements: (1) “plaintiff must have suffered
an injury in fact,” i.e., one that “is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical,” (2) the injury must “be fairly traceable to the
6
While we respect the views of our colleagues who have elected to write
separately, we do not feel the need to offer any specific responses to
those writings. The majority opinion faithfully applies precedent, and
while the separate writings may have differing views on that precedent,
those writings have no binding effect on this court.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 29
challenged action of the defendant,” and (3) it must be
“likely” that the injury is redressable by a favorable decision.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)
(cleaned up).
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.” Bates v. United Parcel Serv.,
Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc) (citations
and quotation marks 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.
An organization has standing to bring suit on behalf of
its 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). Only the first prong is in
dispute here.
Plaintiffs contend that Pioneer FCA’s student leaders
had standing to sue in their own right because, under the
30 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
current All-Comers Policy, any application for ASB
recognition would have been denied. Indeed, the District
admits that any such application would have been futile. But
“[w]e have consistently held that standing does not require
exercises in futility.” Taniguchi v. Schultz, 303 F.3d 950, 957
(9th Cir. 2002); see also Truth, 542 F.3d at 642.
In response, Defendants argue that Plaintiffs lack
standing and that their claims seeking prospective injunctive
relief become moot during the course of the litigation
because they cannot establish (1) 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 (2) “any student’s intent to apply for ASB
recognition for the 2022–23 school year but for the non-
discrimination policy.”
Article III also requires that “an actual controversy be
extant at all stages of review, not merely at the time the
complaint is filed.” Campbell-Ewald Co. v. Gomez, 577
U.S. 153, 160 (2016), as revised (Feb. 9, 2016) (cleaned up).
Thus, where “an intervening circumstance deprives the
plaintiff of a personal stake in the outcome of the lawsuit, at
any point during litigation, the action can no longer proceed
and must be dismissed as moot.” Id. at 160–61 (cleaned up).
Due to the nature of the mootness inquiry, unlike standing,
we must consider factual developments that occurred after
the suit was filed. See Meland v. Weber, 2 F.4th 838, 849
(9th Cir. 2021).
The declarations submitted by Rigoberto Lopez, FCA
National’s student advisor in the Bay Area, show that at least
one student at Pioneer intended to apply for ASB recognition
but was discouraged by the District’s policies. In a
September 2021 declaration, Lopez identified four Pioneer
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 31
students, including N.M., a then-junior, who expressed her
desire to “either lead or continue [her] membership in
Pioneer FCA in the coming year” and that if the court were
to grant an injunction allowing Pioneer FCA to retain its
leadership requirements, that “Pioneer FCA’s leadership
will apply for ASB recognition.” In an October 2021
declaration, Lopez again identified N.M. as one of the
students who attended the school’s “Club Rush” recruiting
event. In a May 2022 declaration, Lopez discussed FCA’s
“plans to grow the group during the 2022–23 school year.”
As part of these plans, Lopez attended multiple meetings,
including a meeting in which the club confirmed N.M. and
B.C (who had just submitted an FCA Student Leader
Application) “as Pioneer FCA’s leadership for the 2022–23
school year.” Based on these declarations it is apparent that
at least one Pioneer FCA student leader would apply for
ASB recognition, meaning that the claims for prospective
relief are not moot.
Contrary to Defendants’ characterizations, this evidence
is not speculative. The record shows that after the decision
of the three-judge panel in this case, N.M. and B.C. promptly
applied for ASB recognition on behalf of Pioneer FCA and
submitted a signed application on September 1, 2022.
Indeed, the District indicated that the timely application
would “be approved in accordance with the Ninth Circuit’s
August 29, 2022 decision.”
Defendants seek to dismiss the Lopez declarations as
“hearsay and speculation,” and criticize Plaintiffs for not
providing “evidence from actual students, who are the only
ones who may apply for ASB recognition.” But these
arguments are legally and factually flawed. Legally, that the
declarations are hearsay is irrelevant because a court may
exercise its discretion to accept hearsay and make inferences
32 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
in ruling on a preliminary injunction. See Republic of the
Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988)
(en banc).
Moreover, the record is now clear that Lopez’s assertions
concerning N.M. and B.C. are true. Factually, Defendants’
arguments about the declarations from Lopez—rather than
the students directly—ignore the record in this case. In
making this argument, Defendants entirely ignore the
stipulation they entered into stating that the District would
not depose any non-party student in exchange for Plaintiffs’
agreement not to introduce testimony from them. Indeed,
the parties entered into this stipulation only after N.M. and
other FCA student leaders felt intimidated after receiving
deposition notices from the District’s counsel, despite not
being parties to the litigation. The District cannot
simultaneously enjoy the benefits of the stipulation by
excluding testimony from these students while criticizing
them for not submitting direct declarations they were not
required to submit.7
Accordingly, we find that Pioneer FCA has
representational organizational standing to sue on behalf of
its members.
B.
“[A]n organization has direct standing to sue where it
establishes that the defendant’s behavior has frustrated its
7
Because this testimony raises a mootness issue, it is appropriate to
consider the Lopez declarations here. See Lowry v. Barnhart, 329 F.3d
1019, 1024 (9th Cir. 2003) (stating that a court may allow the parties to
supplement the record where supplementary material would “render a
controversy moot and thus divest us of jurisdiction”). We therefore
GRANT Plaintiffs’ motion to supplement the record on standing, Dkt.
No. 98. All other pending motions are DENIED as moot.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 33
mission and caused it to divert resources in response to that
frustration of purpose.” Sabra v. Maricopa Cnty. Cmty.
Coll. Dist., 44 F.4th 867, 879 (9th Cir. 2022) (quoting E. Bay
Sanctuary Covenant v. Biden, 993 F.3d 640, 663 (9th Cir.
2021)). While an organization may not “manufacture” an
injury by “choosing to spend money fixing a problem that
otherwise would not affect the organization at all,” it “can
establish standing by showing that [it] would have suffered
some other injury had [it] not diverted resources to
counteracting the problem.” Id.According to its Huddle Playbook, FCA’s mission is
“[t]o lead every coach and athlete into a growing relationship
with Jesus Christ and His church.” FCA’s mission is highly
dependent upon its structure. Indeed, FCA’s entire ministry
starts at the local level on school campuses across the
country. As FCA states, “[t]he campus gives FCA the
platform” necessary to engage in its mission, and the
“campus is strategic” in furthering its goal of engaging
students in Christianity. On campuses in the District, only
ASB clubs enjoy the myriad benefits of membership such as
inclusion in the yearbook, the ability to fundraise, access to
an ASB account, and priority access to meeting spaces in
campus facilities. Given the vital importance of the campus
huddles to FCA’s mission, the District’s denial of those
benefits has undoubtedly hampered FCA National’s ability
to engage in its core objective. We thus conclude that the
District’s denial of ASB recognition has and continues to
frustrate FCA National’s mission.
In addition, FCA National has also had to “divert[]
resources” in “counteracting the problem” posed by the
derecognition both at the time the complaint was filed and
since then. See Sabra, 44 F.4th at 879 (citation omitted).
According to Lopez, FCA National has diverted “a huge
34 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
amount of staff time, energy, effort, and prayer that would
normally have been devoted to preparing for school or
ministry” in “[w]orking to support the FCA student leaders”
after the derecognition. In addition to working directly to
support the Pioneer FCA student leaders, FCA National has
also diverted extensive time “from working on ministry-
advancing activities to instead address” the impact of the
derecognition on the students.
Lost money and “staff time spent responding” to a
challenged government action are directly redressable and,
under our precedent, vest direct organizational standing.
Walker v. City of Lakewood, 272 F.3d 1114, 1124–25 (9th
Cir. 2001); see also, e.g., Pac. Shores Props., LLC v. City of
Newport Beach, 730 F.3d 1142, 1166 (9th Cir. 2013)
(“Diverted staff time is a compensable injury” when it is
“caused by the [challenged government action]”); Fair
Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)
(organizational plaintiff demonstrated standing by
“show[ing] a drain on its resources” caused by combating
housing violations).
The District does not ultimately dispute FCA National’s
distinct organizational standing theory. Rather, it only
disputes the factual basis for the theory: that FCA National
has not adequately demonstrated that District students intend
to apply for ASB recognition for FCA. As discussed above,
however, this argument pertains to mootness (not standing),
and two Pioneer students applied for FCA recognition in fall
2022. Because Pioneer students, such as N.M., remain
committed to forming an FCA chapter on campus, despite
the District’s derecognition, FCA National will continue to
devote significant time and resources to assist its student
members in complying with—and, if necessary,
challenging—the District’s policies. We therefore hold that
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 35
FCA National has organizational standing, and its claims are
not moot.
IV.
“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)
(citations omitted). We evaluate “these factors on a sliding
scale, such ‘that a 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, 632 F.3d at 1131). 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. All. for
the Wild Rockies, 632 F.3d at 1131–32, 1134–35 (citation
omitted); see also Citigroup Glob. Mkts., Inc. v. VCG
Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d
Cir. 2010).
The district court erred in characterizing the requested
relief as a mandatory injunction rather than a prohibitory
injunction. The distinction between the two types of
injunctions can fairly be categorized as one of action versus
inaction. See Ariz. Dream Act Coal. v. Brewer, 757 F.3d
1053, 1060 (9th Cir. 2014) (“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.” (cleaned up)). The difference is legally significant
because mandatory injunctions are “particularly
36 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
disfavored,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma
GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (simplified),
and place a higher burden on the plaintiff to show “the facts
and law clearly favor the moving party.” Stanley v. Univ. of
S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (emphasis added)
(cleaned up).
The inquiry is whether the party seeking the injunction
seeks to alter or maintain the status quo. See Ariz. Dream
Act Coal., 757 F.3d at 1060–61. The district court found that
the controversy here arose when the Plaintiffs filed the
lawsuit in April 2020, and at that time, “no FCA groups had
ASB club status at any District school.” Accordingly, the
district court concluded that “the status quo is that the
District has no ASB-recognized FCA clubs” and thus
Plaintiffs were “asking to change this current state” by
seeking recognition. The district court concluded Plaintiffs
were seeking a mandatory injunction subject to the
heightened standard required for issuance.
Plaintiffs contend the controversy arose not at the time
of the lawsuit, but rather when the District first derecognized
FCA clubs in May 2019. Plaintiffs assert that they are not
seeking to alter the status quo, but simply restore it because
before the District’s actions in 2019, FCA clubs enjoyed
ASB recognition on District campuses for nearly 20 years.
In applying the heightened standard applicable to
mandatory injunctions, the district court abused its
discretion by determining that the status quo was one in
which FCA clubs were unrecognized in District schools. See
Saucillo v. Peck, 25 F.4th 1118, 1133 (9th Cir. 2022) (“[A]
district court abuse[s] its discretion by employing an
erroneous legal standard.”). While there is no bright line rule
for when a controversy arises, the district court’s reasoning
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 37
that the controversy arose at the time of the lawsuit is
contrary to our caselaw. We held in Arizona Dream that the
status quo is “the legally relevant relationship between the
parties before the controversy arose.” 757 F.3d at 1061(emphasis omitted). The facts of Arizona Dream inform our
analysis.
There, Deferred Action for Childhood Arrivals (DACA)
recipients sought a preliminary injunction against Arizona
officials from enforcing a policy that prevented them from
obtaining driver’s licenses. Id. at 1057–58. We held that the
“district court erred in defining the status quo” as one in
which the new policy gave rise to the plaintiffs’ claims. Id.
at 1061. Rather, before the new law went into effect,
plaintiffs were eligible to receive driver’s licenses and “[b]y
revising their policy,” the defendants, not the plaintiffs,
“affirmatively changed [the] status quo.” Id.Here, the District’s new policy of enforcing its non-
discrimination rules likewise alters the status quo of
providing FCA clubs ASB recognition—a benefit that FCA
enjoyed without issue for nearly 20 years. Based on that
longstanding relationship between the parties, we hold that
the status quo was one in which FCA enjoyed recognition.
Because it was the District’s action that “affirmatively
changed” that status quo and Plaintiffs’ motion for a
preliminary injunction seeks to restore that status quo, the
relief sought is properly viewed as a prohibitory injunction.
The district court thus erred in applying a heightened
standard applicable to mandatory injunctions.
V.
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. To
38 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
avoid strict scrutiny, laws that burden religious exercise
must be both neutral and generally applicable. See Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 546 (1993). Nor may the government “act in a manner
that passes judgment upon or presupposes the illegitimacy of
religious beliefs and practices.” Masterpiece Cakeshop, Ltd.
v. Colo. Civ. Rts. Comm’n, 138 S. Ct. 1719, 1731 (2018).
Under the strict scrutiny standard, the government must
demonstrate that “a law restrictive of religious practice must
advance interests of the highest order and must be narrowly
tailored in pursuit of those interests.” Lukumi, 508 U.S. at
546 (cleaned up). The District argues that this standard does
not apply. The District is mistaken.
The District contends that we must analyze the Free
Exercise claim under Martinez, 561 U.S. at 661, and this
Court’s decision in Alpha Delta Chi-Delta Chapter v. Reed,
648 F.3d 790 (9th Cir. 2011). Both cases involved Free
Exercise claims, but neither governs our case. To start,
Martinez says little about the Free Exercise Clause analysis
at all. Rather, the majority opinion’s analysis is confined to
a footnote in which it simply repeats the holding from
Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872, 878–82 (1990), that “the
Free Exercise Clause does not inhibit enforcement of
otherwise valid regulations of general application that
incidentally burden religious conduct.” Martinez, 561 U.S.
at 697 n.27 (citations omitted). Quoting Martinez, the
District contends that we need only conduct a limited public
forum analysis to conclude that FCA “seeks preferential, not
equal, treatment.”
But this argument runs headlong into more recent
Supreme Court authority refining what it means to be
“generally applicable” under Smith. First, while the Fulton
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 39
majority declined to overrule Smith, the majority opinion
clarified Smith’s scope, holding that the mere existence of
government discretion is enough to render a policy not
generally applicable. See Fulton, 141 S. Ct. at 1879 (“The
creation of a formal mechanism for granting exceptions
renders a policy not generally applicable, regardless whether
any exceptions have been given. . . .”). Second, and as
discussed later, the stipulated facts in Martinez providing for
an exceptionless policy are critically distinct from the
discretion the District retains when applying the non-
discrimination policies in this case. See 561 U.S. at 675–76.
In relying on Alpha Delta, the District argues that
Plaintiffs’ Free Exercise claims fail because they do not
“contend that the purpose of the District’s nondiscrimination
policy is to suppress or discriminate against particular
viewpoints or content.” But on this point Alpha Delta is not
controlling because it is out of step with the Supreme Court’s
post-Smith Free Exercise jurisprudence. In Alpha Delta, we
found no Free Exercise violation because the policy
incidentally burdening religion did “not target religious
belief or conduct.” 648 F.3d at 804. Since Alpha Delta was
decided, the Supreme Court has clearly rejected such a
“targeting” requirement for demonstrating a Free Exercise
violation. This is most evident in Tandon v. Newsom, in
which the Court held that “treat[ing] any comparable secular
activity more favorably than religious exercise” prevented a
law from being considered “neutral and generally
applicable.” 141 S. Ct. 1294, 1296 (2021) (per curiam).
Thus, Fulton and Tandon clarify that targeting is not
required for a government policy to violate the Free Exercise
Clause. Instead, favoring comparable secular activity is
sufficient. To the extent that Alpha Delta stands for the
proposition that a Free Exercise violation requires a showing
40 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
of more, we overrule it as “clearly irreconcilable” with
intervening Supreme Court authority. See Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc).8
Distilled, Supreme Court authority sets forth three
bedrock requirements of the Free Exercise Clause that the
government may not transgress, absent a showing that
satisfies strict scrutiny. First, a purportedly neutral
“generally applicable” policy may not have “a mechanism
for individualized exemptions.” Fulton, 141 S. Ct. at 1877
(quoting Smith, 494 U.S. at 884). Second, the government
may not “treat . . . comparable secular activity more
favorably than religious exercise.” Tandon, 141 S. Ct. at
1296. Third, the government may not act in a manner
“hostile to . . . religious beliefs” or inconsistent with the Free
Exercise Clause’s bar on even “subtle departures from
neutrality.” Masterpiece Cakeshop, 138 S. Ct. at 1731(citation omitted); Lukumi, 508 U.S. at 534. The failure to
meet any one of these requirements subjects a governmental
8
Alpha Delta’s analysis pertaining to the Free Speech Clause has
similarly been abrogated by more recent Supreme Court authority. In
Alpha Delta, our court found that the nondiscrimination policy was not
subject to strict scrutiny because it was not implemented “for the purpose
of suppressing [p]laintiffs’ viewpoint.” 648 F.3d at 801. But that
standard requiring a purpose or intent to suppress a viewpoint is
incompatible with Reed v. Town of Gilbert, 576 U.S. 155 (2015). In
reversing our court, Reed held that “[a] law that is content based on its
face is subject to strict scrutiny regardless of the government’s benign
motive, content-neutral justification, or lack of ‘animus toward the ideas
contained’ in the regulated speech.” Id. at 165 (quoting Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 429 (1993)). Thus, even if the
District were correct that there was no intent to suppress FCA’s religious
viewpoint—a contention that is dubious based on these facts—the
District’s intent is irrelevant in the Free Speech analysis. Because Alpha
Delta is no longer good law, Plaintiffs are likely to prevail on their Free
Speech claim as well.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 41
regulation to review under strict scrutiny. On the record
before us, the District’s implementation of its non-
discrimination policies fails all three.
A.
The Supreme Court’s recent decision in Fulton
demonstrates the faults in the District’s view of general
applicability. In Fulton, a foster care agency, Catholic
Social Services (CSS) had a contract with the City of
Philadelphia (City) in which the City’s Department of
Human Services would ultimately place children in foster
homes associated with CSS. 141 S. Ct. at 1874–75. CSS,
like FCA, held religious beliefs about marriage that
informed its work within the foster care system. Id. at 1875.
“CSS believe[d] that marriage is a sacred bond between a
man and a woman,” and as such, it would not certify
unmarried or same-sex couples to participate in its program.
Id.9 In 2018, the City investigated CSS after the City
Council stated that there were “laws in place to protect . . .
people from discrimination that occurs under the guise of
religious freedom.” Id. The City ultimately decided that it
would not fully renew its contract with CSS unless the
agency agreed to certify participation by same-sex couples.
Id. at 1875–76. CSS and three of its affiliated foster parents
sued, bringing Free Exercise challenges. After the Third
Circuit affirmed the district court’s denial of preliminary
relief, id. at 1876, the Supreme Court reversed, id. at 1882.
In doing so, the Supreme Court provided a framework
for determining whether a government policy burdening
9
“CSS [did] not object to certifying gay or lesbian individuals as single
foster parents or to placing gay and lesbian children.” Fulton, 141 S. Ct.
at 1875.
42 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
religious exercise is “generally applicable” and thus not
subject to strict scrutiny. Id. at 1877. Under this framework,
“[a] law is not generally applicable if it invites the
government to consider the particular reasons for a person’s
conduct by providing a mechanism for individualized
exemptions.” Id. (cleaned up). In our case, the District’s
policies are not generally applicable because the District
retains discretion to grant individualized exemptions for its
own programs and student programs alike.
The District has “broad” and “comprehensive” policies
forbidding discrimination on the basis of race, sex, sexual
orientation, religion, and other criteria. These policies apply
district-wide not only for ASB student groups, but also for
all District programs and activities. But rather than apply its
non-discrimination policies without exception, the District
admits that it retains (and exercises) significant discretion in
applying exceptions to its own programs, as well as to
student programs. Indeed, the District claims to justify this
exercise of discretion using its separate “Board-adopted
equity policy,” which represents the District’s “commitment
to ensuring that . . . students get what they need” and to
“support high-quality outcomes for students.” While
inclusiveness is a worthy pursuit, it does not justify uncertain
exemptions or exceptions from the broad non-discrimination
policies, which undermine their neutrality and general
applicability and burden Free Exercise. For example, the
District’s mechanism allows it to evaluate which “groups of
students” qualify for the equity policy’s objectives based on
“race, ethnicity, gender, sexual orientation, language,
disability, and socioeconomic status.” This authority “to
decide which reasons for not complying with the policy are
worthy of solicitude” on an ad hoc basis renders the policy
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 43
not “generally applicable” and requires the application of
strict scrutiny. Fulton, 141 S. Ct. at 1879 (cleaned up).
The District’s assertion that Fulton was only concerned
with “unfettered” discretion, is overly narrow. Properly
interpreted, Fulton counsels that the mere existence of a
discretionary mechanism to grant exemptions can be
sufficient to render a policy not generally applicable,
regardless of the actual exercise. See id. at 1879. And this
case steps beyond the mere existence of a mechanism.
Although the District avers that it has not yet exercised its
discretion to grant exemptions, the record is replete with
instances in which the District has actually done so, and done
so in a viewpoint-discriminatory manner. Most notably, the
District exercises its discretion to allow student groups to
discriminate based on sex or ethnic identity. For example,
the District recognizes the Senior Women Club and the
South Asian Heritage Club, which facially discriminate on
the basis of sex and ethnicity. Even if the District seeks to
justify these discriminatory practices by asserting that they
benefit “individuals who need specific support from the
school system” and align with the District’s “equity policy,”
this would not change matters. As discussed more below,
the District’s alleged good intentions do not change the fact
that it is treating comparable secular activity more favorably
than religious exercise.
The District also retains discretion to allow student
groups to discriminate based on other “non-discriminatory”
criteria. The District does not maintain any written list of
such approved criteria; rather, these exemptions are
sanctioned based on the District officials’ use of “common
sense” on a case-by-case basis. For example, the District
allows its clubs and programs to restrict membership based
on attributes such as good character. While screening for
44 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
such qualities may further important interests for particular
clubs, the very fact that they require a case-by-case analysis
is antithetical to a generally applicable policy.
The non-discrimination policies at issue may serve many
admirable goals articulated by the District. Of course, it is
desirable to help “students get what they need” and to
“support high-quality outcomes for students.” But in
allowing exceptions to its generally applicable policies, the
District necessarily is forced to delve into the specific facts
and circumstances or to “consider the particular reasons” for
such “individualized exemptions.” Fulton, 141 S. Ct. at
1877. Thus, while the exercise of “common sense often
makes good law,” Peak v. United States, 353 U.S. 43, 46
(1957), it means that the law is not generally applicable. The
District’s broad discretion to grant exemptions on less than
clear considerations removes its non-discrimination policies
from the realm of general applicability and thus subjects the
policy to strict scrutiny.
B.
In Fulton, the Supreme Court determined that it was
“more straightforward to resolve [the] case under the rubric
of general applicability” rather than to address the claims the
government had also “transgressed [the] neutrality standard”
required by the Free Exercise Clause. Fulton, 141 S. Ct. at
1877. But under the facts of our case, it is evident that in
addition to a lack of general applicability, there are
significant concerns with the District’s lack of neutrality.
As the Court held in Tandon, “regulations are not neutral
and generally applicable . . . whenever they treat any
comparable secular activity more favorably than religious
exercise.” 141 S. Ct. at 1296 (citing Roman Cath. Diocese
of Brooklyn v. Cuomo, 141 S. Ct. 63, 67–68 (2020) (per
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 45
curiam)). In Tandon, the Court explained that California
could not impose COVID-related gathering restrictions on
at-home religious exercise while providing more favorable
treatment to comparable secular activities by exempting
gatherings at places such as hair salons, retail stores, movie
theaters, and indoor restaurants. Id. at 1297. Similarly in
Lukumi, the City of Hialeah could not ban animal sacrifice
in a manner that precluded the religious practices of Santeria
while exempting other forms of animal killing for food,
including hunting. 508 U.S. 524–28, 537–39. At bottom—
and regardless of design or intent—the government may not
create “religious gerrymanders.” Walz v. Tax Comm’n of
N.Y.C., 397 U.S. 664, 696 (1970) (Harlan, J., concurring).
Under Tandon, “whether two activities are comparable
for purposes of the Free Exercise Clause must be judged
against the asserted government interest that justifies the
regulation at issue.” 141 S. Ct. at 1296 (citing Roman Cath.
Diocese, 141 S. Ct. at 67). And in making these
comparisons, the Court “is concerned with the risks various
activities pose.” Id. While the District attempts to draw a
distinction between school-operated and student-operated
programs, we are only concerned with the risk involved and
“not the reasons why people gather.” Id. The District’s
asserted interest here is in ensuring equal access for all
students to all programs and in prohibiting discrimination on
protected enumerated bases, including sex, race, and
ethnicity.
However, in practice, this results in a pattern of selective
enforcement favoring comparable secular activities. For
example, the District allowed the Girls’ Circle to admit only
female-identifying students, and the Big Sister/Little Sister
club to similarly exclude members of the opposite gender.
The District also permitted groups to select their members
46 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
based on “good moral character.” However, this selective
enforcement is seen most obviously in the case of the Senior
Women Club, which was ASB approved despite the group
stating on its ASB application form that “[a] student shall no
longer be considered a member if the student . . . does not
identify as female.” The District Court clearly erred in
finding that despite this express membership requirement,
because the club’s application also contained pre-written
template non-discrimination language, it was “not clear
proof that the District allows the club to violate” the non-
discrimination policy. In sum, each of these clubs were
allowed to discriminate expressly—even on otherwise
protected grounds. That the District allows such
discrimination for secular groups significantly undercuts its
goal of ensuring that all students “ha[ve] equal access . . . to
all of [the District’s] programs.” Indeed, to the contrary, the
District actually “identif[ies] systemic issues” on the basis of
characteristics such as race and gender, and in response
creates these programs and activities designed to fulfill the
needs of those secular groups.
Individual preferences based on certain characteristics
and criteria serve important purposes for these groups. It is
hardly a leap of logic to say that the Senior Women club
benefits from having all female members to help their
members feel more comfortable. And it is understandable
that other clubs require “good moral character.” But at the
same time, it makes equal sense that a religious group be
allowed to require that its leaders agree with the group’s
most fundamental beliefs. Simply put, there is no
meaningful constitutionally acceptable distinction between
the types of exclusions at play here. Whether they are based
on gender, race, or faith, each group’s exclusionary
membership requirements pose an identical risk to the
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 47
District’s stated interest in ensuring equal access for all
student to all programs. Under Tandon, the District’s
acceptance of comparable selective secular organizations
renders its decision to revoke and refuse recognition to FCA
subject to strict scrutiny.
C.
“A law burdening religious practice that is not neutral or
not of general application must undergo the most rigorous of
scrutiny.” Lukumi, 508 U.S. at 546. Indeed, the Free
Exercise Clause “forbids subtle departures from neutrality,”
and “covert suppression of particular religious beliefs.” Id.(first quoting Gillette v. United States, 401 U.S. 437, 452
(1971) then quoting Bowen v. Roy, 476 U.S. 693, 703
(1986)). As part of evaluating the neutrality of government
actions, we must therefore examine “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.” Masterpiece Cakeshop, 138 S.
Ct. at 1731 (quoting id. at 540). We especially note that
government actions coupled with “official expressions of
hostility to religion . . . [are] inconsistent with what the Free
Exercise Clause requires . . . [and] must be set aside.” Id. at
1732. Although the district court made no findings in this
regard, the District’s hostility toward FCA was neither subtle
nor covert and its decision to revoke FCA’s ASB recognition
is therefore subject to strict scrutiny.
The Supreme Court’s recent decision in Masterpiece
Cakeshop is illustrative. There, state officials in the
Colorado Civil Rights Commission (Commission) opened
an investigation into a baker and cake-shop owner after he
48 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
declined to create custom wedding cakes for same-sex
couples because he claimed his religious beliefs prohibited
him from doing so. Masterpiece Cakeshop, 138 S. Ct. at1724–26. After referring the matter to an administrative law
judge, the Commission affirmed the decision, ordered
various remedial measures, and commanded the baker to
cease and desist from refusing same-sex couples the same
wedding-related services provided to heterosexual couples.
Id. at 1726. The Colorado Court of Appeals affirmed the
Commission. Id. at 1726–27.
The Supreme Court reversed, finding that the
Commission demonstrated “elements of a clear and
impermissible hostility toward the sincere religious beliefs
that motivated his objection.” Id. at 1729. The Court
specifically highlighted several instances of hostility
demonstrated by members of the Commission, including
comments that the baker’s beliefs had no legitimate currency
in the public sphere and that he could believe “what he wants
to believe” but had to compromise if he wanted to “do
business in the state.” Id. While the Court found those
comments demonstrated some level of hostility, any doubt
of the disparaging nature of those comments was lifted when
one of the commissioners at another public meeting opined
that religion was a common means “to justify all kinds of
discrimination throughout history,” including slavery and
the Holocaust. Id. That same commissioner also stated that
“[religion] is one of the most despicable pieces of rhetoric
that people can use to––to use their religion to hurt others.”
Id. The Court found that these disparaging comments—to
which no other member of the Commission objected—
inescapably “cast doubt on the fairness and impartiality of
the Commission’s adjudication of [the] case.” Id. at 1730.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 49
The Court also found evidence of hostility based on the
difference in treatment between this particular baker and the
cases of at least three “other bakers who objected to a
requested cake on the basis of conscience and prevailed
before the Commission.” Id. at 1730. In those instances,
bakers refused to create cakes with messages and religious
text conveying disapproval of same-sex marriage, and the
Commission found objections that such messages were
“derogatory,” “hateful,” and “discriminatory” sufficient. Id.The Court rejected any distinction, holding that any
disparate treatment “cannot be based on the government’s
own assessment of offensiveness.” Id. at 1731. In sum, the
Supreme Court found that the Commission’s actions
violated its “duty under the First Amendment not to base
laws or regulations on hostility to a religion or religious
viewpoint.” Id.The Court further noted the somewhat unique
circumstances of that case in that the hostile comments
showing animus were made by members of an adjudicatory
body that was tasked with neutrally applying the law while
it was deciding the case. Id. In our case, the District
contends that there is “no evidence” that the statements made
by Glasser, Bowman, and Principal Espiritu and others
“informed, let alone dictated the District’s decision[]” to
derecognize FCA. We disagree.
While not directly equivalent to the Commission, the
Climate Committee and its role in the derecognition of FCA
fall well within the ambit of the legal principles articulated
in Masterpiece Cakeshop. The Climate Committee was not
simply made up of random individuals in the District, but
rather individuals with positions of importance within the
schools including department chairs, administrators such as
the principal and vice principal, and the director of activities.
50 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
Moreover, the stated purpose of this group was to “to discuss
anything . . . negatively impacting [the] climate or . . .
culture on campus.” Without Glasser’s and the Climate
Committee’s actions, there is no indication that any other
group or administrative body within the District would have
called for an investigation of FCA’s membership and
leadership policies and ultimately called for its
derecognition on campus.
Like the Commission in Masterpiece Cakeshop, the
Climate Committee made a recommendation that was
ratified by the District. While there is some confusion as to
whether the District or Principal Espiritu had the final say on
derecognition, there is no dispute that the decision closely
followed the Climate Committee’s determination that FCA
violated certain “core values” such as “inclusiveness [and]
open-mindedness.” There is no indication that any member
of the Climate Committee or District official thought
otherwise; to the contrary, the Climate Committee concluded
it had “to take a united stance as [a] committee.” After
Principal Espiritu forwarded the Climate Committee’s
concerns to District officials, there is also no indication in
the record that District officials pushed back on these views
in any way. Rather, the District allowed Principal Espiritu
and the Climate Committee to strip FCA of ASB status. Any
doubt regarding the power wielded by the Climate
Committee and Principal Espiritu is belied by the speed in
which FCA was derecognized.10 Before the Climate
10
At oral argument, counsel for the District stated that “the record is
clear that the Climate Committee did not make [the decision to
derecognize FCA]” and that “Ms. Bowman and Mr. Glasser, who were
the teachers, were not involved in the decision.” These assertions––that
Bowman and Glasser were simply teachers with no influence and that
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 51
Committee’s investigation, FCA had functioned on campus
without issue for nearly 20 years. But in a span of less than
two weeks after the initial complaint by Glasser, FCA was
derecognized without any ability to defend itself—a penalty
never before imposed on any ASB-recognized student group
at Pioneer.
The District argues that there is not even “any whiff of
antireligious animus” present in this case. This argument
“does not pass the straight-face test.” Hughes v. Kisela, 862
F.3d 775, 797 (9th Cir. 2016) (Ikuta, J., dissenting from
denial of rehearing en banc); see also Cervantes v. United
States, 330 F.3d 1186, 1187 (9th Cir. 2003) (“Although rare,
on occasion, we see arguments that simply fail the straight-
face test.”). Assessed in their totality, the facts of this case
arguably demonstrate animus by government decision-
makers exceeding that present in Masterpiece Cakeshop or
Lukumi. This holds particularly true when bearing in mind
the hostility here is directed not at adult professionals, but at
teenage students.11 Students were told—in front of their
peers—that the views embodied in their Statement of Faith
were objectionable and hurtful and had no rightful place on
campus.
While there is strong evidence of animus toward FCA in
the District, for purposes of the Masterpiece Cakeshop
the Climate Committee had no role in the decision-making process––are
unsupported by the totality of the record in this case.
11
While teachers certainly retain their own Free Speech rights, the power
dynamic of the student-teacher relationship is not lost upon us. In a
vacuum, the disparaging comments made by some of the members of the
Climate Committee are harmful, but when made to and in reference to
students that they are responsible for counseling, such statements bolster
a finding of animus in this case.
52 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
analysis, we focus on the animus exhibited by the members
of the Climate Committee. One teacher and Climate
Committee member disparaged FCA’s beliefs by calling
them “bullshit” and deeming them without “validity.”
Another teacher and Climate Committee member accused
FCA of “choos[ing] darkness” and “perpetuat[ing]
ignorance,” calling them “charlatans,” who “‘conveniently’
forget what tolerance means,” and “twisting the truth.” And
perhaps most tellingly, the school’s principal stated to the
entire school in a newspaper article that FCA’s views were
“of a discriminatory nature.” These comments echo the
comments condemned by the Court in Lukumi and
Masterpiece Cakeshop. See Lukumi, 508 U.S. at 541–42
(noting comments by city officials describing Santeria as
“foolishness,” “an abomination,” and “abhorrent”);
Masterpiece Cakeshop, 138 S. Ct. at 1729 (noting comments
by Commission members describing the baker’s religious
beliefs as “despicable” and comparing them to “defenses of
slavery and the Holocaust”).
Even after FCA was derecognized on campus, students
and teachers alike continued their campaign to “ban FCA
completely from campus.” And Glasser, for instance, over
a summer vacation, went so far as to hypothesize a scenario
in which “FCA violates [the District’s] sexual harassment
policy.” In other words, he suggested that teenage students
who met in private to hold prayer groups and discuss the
Bible were creating a hostile work environment for the adult
teachers on campus. Indeed, Glasser’s follow up email
expressing his eagerness to “talk about next steps” to “use[]”
government policy to exclude FCA is the exact type of
comment found to “evidence significant hostility” by the
Supreme Court. Lukumi, 508 U.S. at 541 (holding that
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 53
statements by city council, including asking: “[w]hat can we
do to prevent the Church from opening?” to show animus).
The objections to FCA’s presence were not merely
passive, either. Students formed the Satanic Temple Club,
which Glasser viewed as created for the sole purpose of
mocking FCA, and whose faculty advisor was another
Climate Committee member. And while unlike Masterpiece
Cakeshop, none of these statements were made during an
actual adjudication, particularly when considered at the
preliminary injunction stage these actions sufficiently show
that the District’s decisions were motivated by “animosity to
religion or distrust of its practices.” See Lukumi, 508 U.S. at
547. Accordingly, the District’s policies are subject to strict
scrutiny.
VI.
In response to the ongoing litigation, the District adopted
its own version of the All-Comers policy modeled after the
version upheld by the Supreme Court in Martinez. Based on
the adoption of this new policy, the District contends that the
past actions under its non-discrimination policy do not give
rise to any forward-looking relief because FCA is the only
club that maintains discriminatory criteria. We are not
persuaded.
Though new in name, the record evidence shows that the
All-Comers Policy is little more than a rebranded version of
the District’s previous non-discrimination policies. Indeed,
the language of the two policies and the types of
discrimination they seek to prohibit is functionally identical.
They are nearly indistinguishable on paper and there is no
daylight between them for purposes of enforcement. Even
after the implementation of the All-Comers Policy, the
District still approved clubs with facially discriminatory
54 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
membership criteria such as the Senior Women Club.
Pioneer’s Activities Director, Michelle Mayhew,
acknowledged that other groups could continue to limit their
membership based on criteria such as good moral character.
While the District attributes issues in the process for
approving these clubs to a simple mistake or inadvertence
instead of to selective enforcement of its anti-discrimination
policies, its argument is undercut by Mayhew’s admission
that under the All-Comers Policy, she would approve an
ASB application for the Girls Who Code club even if it
expressly limited its membership to students identifying as
female. Based on the record before us, the only reasonable
inference that can be drawn here is that the “in name only”
All-Comers Policy was adopted in response to the litigation
in this case. But the adoption of that policy cannot undo the
past animosity toward FCA based on its beliefs. In sum, the
All-Comers Policy appears to be the type of post hoc
justification that is incompatible with the protections of the
First Amendment. See Kennedy, 142 S. Ct. at 2432 n.8
(“Government ‘justifications[s]’ for interfering with First
Amendment rights ‘must be genuine, not hypothesized or
invented post hoc in response to litigation.’” (alteration in
original) (quoting United States v. Virginia, 518 U.S. 515,
533 (1996))).
While each of these groups may have valid reasons for
its membership prerequisites or preferences, the All-Comers
Policy does not provide exceptions for “benign”
discriminatory membership rules. Indeed, even if it did, the
Constitution does not allow for “benign” classification based
on race, ethnicity, or sex. See Adarand Constrs., Inc. v.
Pena, 515 U.S. 200, 226–27 (1995) (applying strict scrutiny
to “benign” racial classifications). While each of these clubs
might be able to maintain discriminatory membership
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 55
policies, the District may not selectively enforce the All-
Comers Policy against FCA because of its religious beliefs.12
In sum, the All-Comers Policy is neither neutral nor
generally applicable under Fulton or Tandon.
In its briefing, the District relies heavily on Martinez in
an attempt to justify its position. But Martinez does not
stand for the broad proposition that an all-comers policy
immunizes an institution from scrutiny of whether a law or
policy is neutral and generally applicable. Rather, Martinez
simply held that a truly categorical all-comers policy—one
which required student groups to accept all members without
exception—may comply with the First Amendment as a
neutral law of general applicability. See 561 U.S. at 674–76
(discussing parties’ stipulation). Martinez is also
distinguishable on its facts. The narrowness of the Court’s
holding is evident by its repeated emphasis that the policy
was applicable “across-the-board” on the basis of a
stipulated record. See id. at 668, 675–78; see also id. at 698(Stevens, J., concurring) (observing the “narrow issue
presented by the record”). By contrast, the record here
demonstrates the District’s All-Comers Policy is replete with
exemptions that treat comparable secular groups more
favorably by allowing them to limit membership based on a
12
As previously noted, see supra at 18 n.2, the EAA prohibits the District
from denying any student club equal access to ASB recognition based on
the “religious, political, philosophical, or other content” of the club’s
speech. Even if a law is facially “content-neutral,” the government still
impermissibly regulates based on content if it selectively enforces its
laws. See Menotti v. City of Seattle, 409 F.3d 1113, 1146–47 (9th Cir.
2005). In examining content-neutrality under the EAA, we borrow the
First Amendment analysis. See Truth, 542 F.3d at 645–46. Because
Plaintiffs are also likely to succeed on the merits of their Free Exercise
claim, in part due to the selective enforcement and discrimination based
on religious viewpoint, they are also likely to prevail on their EAA claim.
56 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
variety of discriminatory secular criteria. Fairly read,
Martinez affirms that the District’s All-Comer’s Policy as
applied is neither neutral nor generally applicable, and thus
is subject to strict scrutiny.
* * *
Under each of the three criteria set forth by the Supreme
Court, the District’s non-discrimination policies are subject
to strict scrutiny. The District essentially concedes that it
cannot meet this standard as it has offered no arguments to
the contrary. To pass strict scrutiny, the District’s policies
must be “narrowly tailored” to advance “a compelling
governmental interest.” Lukumi, 508 U.S. at 531–32.
Because the District has failed to offer any showing that it
has even considered less restrictive measures than those
implemented here, it fails at least the tailoring prong of the
strict scrutiny test. See Thomas v. Rev. Bd. of Ind. Emp. Sec.
Div., 450 U.S. 707, 718 (1981). Accordingly, Plaintiffs have
shown a likelihood of success on the merits of their Free
Exercise claims to support the issuance of a preliminary
injunction.
VII.
The remaining factors in the preliminary injunction test
also favor an injunction. It is axiomatic that “[t]he loss of
First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.” Roman
Cath. Diocese, 141 S. Ct. at 67 (quoting Elrod v. Burns, 427
U.S. 347, 373 (1976) (plurality opinion)). And we have
observed, “[i]rreparable harm is relatively easy to establish
in a First Amendment case” because the party seeking the
injunction “need only demonstrate the existence of a
colorable First Amendment claim.” Cal. Chamber of Com.
v. Council for Educ. & Rsch. on Toxics, 29 F.4th 468, 482
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 57
(9th Cir. 2022), cert. denied, No. 22-699, 2023 WL 2959385(U.S. Apr. 17, 2023) (cleaned up). For all the reasons
discussed above, Plaintiffs have demonstrated a colorable
claim that the District’s application of its non-discrimination
policies to FCA violated their Free Exercise rights, and will
continue to violate those rights absent an injunction. In
particular, the deprivation of ASB recognition has and will
continue to hamper FCA’s ability to recruit students,
constituting an enduring harm that will irreparably risk the
club’s continued existence on campus. See Christian Legal
Soc’y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006)
(explaining the “flaw[]” in the district court’s holding of no
irreparable harm based on derecognition). The irreparable
harm factor thus weighs in favor of injunctive relief.
Where, 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 FCA has (at a
minimum) “raised serious First Amendment questions,” that
alone “compels a finding that the balance of hardships tips
sharply in [its] favor.” Am. Bev. Ass’n v. City & County of
San Francisco, 916 F.3d 749, 758 (9th Cir. 2019) (en banc)
(cleaned up). Furthermore, “it is always in the public interest
to prevent the violation of a party’s constitutional rights.” Id.(quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.
2012)).
Finally, without injunctive relief, FCA’s ability to recruit
new students to bolster its dwindling membership will
continue to be harmed, to the degree that the club may cease
to exist District-wide. While the District’s asserted interest
in inclusiveness may be important, the Constitution prohibits
the District from furthering that interest by discriminating
against religious views. Indeed, the record suggests that the
58 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
harm to the District by the grant of injunctive relief is
minimal as prior to the events giving rise to this action, FCA
existed as a recognized club for nearly two decades without
any objection. In sum, the remaining injunction factors
favor the grant of preliminary relief.
VIII.
Anti-discrimination laws and policies serve undeniably
admirable goals, but when those goals collide with the
protections of the Constitution, they must yield—no matter
how well-intentioned. 303 Creative LLC v. Elenis, 143 S.
Ct. 2298, 2315 (2023) (“When a state public
accommodations law and the Constitution collide, there can
be no question which must prevail.” (citing U.S. CONST.,
Art. VI, cl. 2)). Even if the views held by FCA may be
considered to be out-of-date by many, the First Amendment
“counsel[s] mutual respect and tolerance . . . for religious
and non-religious views alike.” Kennedy, 142 S. Ct. at 2416.
We do not in any way minimize the ostracism that LGBTQ+
students may face because of certain religious views, but the
First Amendment’s Free Exercise Clause guarantees
protection of those religious viewpoints even if they may not
be found by many to “be acceptable, logical, consistent, or
comprehensible.” Fulton, 141 S. Ct. at 1876 (quoting
Thomas, 450 U.S. at 714).
Plaintiffs are likely to succeed on their Free Exercise
claims because the District’s policies are not neutral and
generally applicable and religious animus infects the
District’s decision making.13 The remaining factors also
support granting Plaintiffs’ requested injunctive relief.
13
As noted, supra at 40 n.8, 55 n.12, Plaintiffs are also likely to succeed
on their Free Speech and EAA claims.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 59
Therefore, we REVERSE the district court’s denial of
FCA’s motion for a preliminary injunction and direct the
district court to enter an order reinstating FCA’s ASB
recognition.14
FORREST, J., concurring:
The San Jose Unified School District’s (District)
treatment of students participating in the Fellowship of
Christian Athletes’ (FCA) student club is shocking and
fundamentally at odds with bedrock principles that have
guided our Republic since the beginning. I strongly agree
with the court that FCA is entitled to a preliminary
injunction. I write separately only because, after further
consideration, I see this as a free-speech case more than a
religious-freedom case, and I would resolve it under the
Equal Access Act (EAA) and the Free Speech Clause of the
First Amendment. I also would not address direct
organizational standing because FCA’s chapter at Pioneer
High School (Pioneer) has standing to represent its members
in this action.
14
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 mootness, we reverse the district court’s denial of Plaintiffs’
motions to supplement the preliminary injunction record. C.f. EEOC v.
Peabody W. Coal Co., 773 F.3d 977, 990 (9th Cir. 2015) (holding that
district court’s denial of a motion to supplement the preliminary
injunction record was not an abuse of discretion because the
supplemental evidence was irrelevant to the issues properly before the
court).
60 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
The EAA prohibits public secondary schools from
denying equal access to student-initiated clubs based on the
content of speech at club meetings. 20 U.S.C. § 4071.
Congress enacted the EAA to extend a Supreme Court
decision establishing free-speech rights for student clubs on
college campuses to public secondary schools. See Bd. of
Educ. of Westside Cmty. Schs. v. Mergens By & Through
Mergens, 496 U.S. 226, 235 (1990). The EAA directly
applies here. Additionally, the fundamental problem with the
District’s treatment of FCA applies to ideological student
clubs generally, not just religious clubs. Resolving this case
on free-speech grounds recognizes that broader reality.
Thus, I join Parts I–II, III.A., IV, and VI–VII of the court’s
opinion and otherwise concur in the judgment because I
would reverse the district court’s denial of a preliminary
injunction in favor of FCA because FCA is likely to succeed
on the merits of its EAA and First Amendment free-speech
claims.
I. BACKGROUND
A. FCA’s Mission & Organization
FCA is a national Christian ministry organization that
was founded in 1954 (FCA National). Its mission is “to lead
every coach and athlete into a growing relationship with
Jesus Christ and His church.” FCA has over 20,000 ministry
groups worldwide, including 7,000 local chapters operating
at middle schools, high schools, and colleges across the
United States. FCA’s method for accomplishing its mission
is “to make disciples through . . . engaging, equipping and
empowering coaches and athletes to know and grow in
Christ and lead others to do the same.” FCA chapter events
include religious discussions, service projects, prayer times,
worship, weekly meetings, and Bible studies.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 61
The FCA chapter at Pioneer in San Jose, California
(Pioneer FCA), is an affiliate of FCA National that was
recognized by the District as an Associated Student Body
(ASB) approved student organization beginning in the early
2000s. Pioneer FCA hosts leadership meetings “focused on
prayer, equipping student leaders for ministry, and planning
ministry events,” and “whole-chapter events,” where the
group hosts a “well-known professional” or college athlete
“to share about their own faith journeys and provide
inspiration to students.” The chapter events begin by
welcoming the participants and explaining FCA’s mission,
followed by an icebreaker and Bible teaching or a “Christian
message from guest speakers,” and concludes with a
discussion of the Christian beliefs that were taught, and a
prayer.
All students are welcome to participate in these FCA
events and become members of FCA. But FCA has faith-
based eligibility criteria for its student leaders. FCA’s
student leaders are responsible for ensuring that club
meetings are conducted in a manner consistent with FCA’s
faith and for coordinating the content, format, timing, and
location of such meetings. They lead FCA meetings and
Bible studies, prayer, worship, and religious teachings;
identify topics and speakers for events; “minister to their
peers individually”; and “communicate FCA’s message
when interacting with” various staff and students at their
schools. Further, FCA leaders are formally deemed “FCA
Representatives,” with a “core function” of “religious
ministry” through their expression, messaging, and
modeling of FCA’s faith-based beliefs.
Given these responsibilities, FCA provides religious
training for its student leaders about FCA’s vision, values,
and ministry. The training equips student leaders “to study
62 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
the Bible, lead a campus huddle, and share their testimonies
with others,” and teaches them how to structure and lead
meetings. These trainings also cover “worship, prayer, Bible
teaching, mentoring,” and teaching the “mission and vision
of FCA.”
As part of ensuring that FCA’s student leaders are
equipped to fulfill their “spiritual roles” and adequately carry
out FCA’s mission, FCA requires prospective student
leaders to fill out applications describing their spiritual
commitment, personally affirm FCA’s Statement of Faith,
and agree to follow FCA’s Sexual Purity Statement. Specific
beliefs that FCA student leaders must affirm include that
“every person should be treated with love, dignity, and
respect”; that the Bible is the “Word of God”; that “Jesus
Christ is God”; and that “God instituted marriage between
one man and one woman as the foundation of the family and
the basic structure of human society.” FCA’s Sexual Purity
Statement further professes:
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.
In addition to affirming these beliefs and agreeing to
follow FCA’s Sexual Purity Statement, student leaders must
also acknowledge that they will be “held to a higher standard
of biblical lifestyle and conduct” and that they are required
to “do their best to live and conduct themselves in
accordance with biblical values.” And they must affirm they
will “not subscribe to or promote any religious beliefs
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 63
inconsistent with [FCA’s] beliefs.” FCA asserts that
“[h]aving student leaders who refuse[] to personally accept
FCA’s religious beliefs would compromise the integrity of
the group and the leaders, undercut the group’s mission and
message, and harm [its] ability to express [its] Christian
beliefs.”
B. ASB Program
The ASB program overseen by the District allows
students to form after-school clubs and was developed to
provide a forum for students to “learn how to be leaders; how
to engage with some of the democratic principles that align
with their own personal interests; how to be members of a
community; [and] how to be welcoming and inclusive.”
ASB clubs must be student-initiated, and their meetings may
not be run or controlled by school employees or agents. And
while ASB clubs all have faculty advisors, District staff may
not be directly involved in religious activities. ASB-
recognized clubs are included in the school yearbook and
official school-club lists, receive priority access to school
meeting spaces, have access to ASB accounts, and can run
and receive support for ASB-approved fundraisers. Non-
ASB clubs are allowed to use school facilities to meet, but
they do not receive the benefits afforded to ASB-recognized
clubs.
The District recognizes as ASB-approved clubs a wide
variety of student groups formed for various purposes. ASB-
approved clubs include the Harry Potter Club, Communism
Club, Shrek Club, Girls Who Code, and Chess Club. Each
club sets the criteria for their members and leaders. For
example, the South Asian Heritage club “prioritize[s]”
acceptance of South Asian members. The Senior Women
club limits its membership to “seniors who identify as
64 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
female.” And the Big Sister Little Sister club limits
membership to females. According to Herbert Espiritu, the
principal at Pioneer, Big Sister Little Sister “was something
of a mentorship for [Pioneer’s] freshmen students who are
females to be mentored by . . . senior female students.” “Girl
Talk of Pioneer High School” also limited its membership to
“female students.”
C. FCA’s Derecognition
FCA clubs had been ASB-recognized at three District
high schools, including Pioneer, since the early 2000s. But
in April 2019, Pioneer social studies teacher Peter Glasser
brought a version of FCA’s Statement of Faith and Sexual
Purity Statement to Principal Espiritu’s attention,1 stating
that one of Glasser’s students was “very upset about the anti-
gay prerequisites” reflected in what Glasser called FCA’s
“pledge.” Glasser asked Principal Espiritu if he could
“please discuss how to approach [FCA’s] leadership.”
Glasser explained that FCA’s viewpoint on “LGBTQ+
identity” troubled him. Principal Espiritu stated that he
would discuss the matter with administration members and
the club’s leaders.
A few days after Glasser’s email, FCA National
employee Rigo Lopez told Principal Espiritu that FCA
leaders had informed him about “conversation[s] happening
1
Student leaders of Pioneer FCA informed Glasser that the Statement of
Faith and Sexual Purity Statement he had obtained were not accurate
reflections of the statements used by Pioneer FCA. The documents that
Glasser obtained and forwarded to Principal Espiritu are slightly
different from the versions that FCA provided. But both versions include
FCA’s viewpoint that marriage and sexual intimacy are meant to be
between a man and a woman, which is what Glasser referred to as “anti-
gay prerequisites.”
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 65
on Pioneer’s campus right now regarding FCA’s Sexual
Purity Policy.” Lopez informed Principal Espiritu that the
policy pertained only to “those wanting to serve in a
leadership/officer capacity (student or adult) within FCA.”
Shortly thereafter, Glasser emailed Principal Espiritu
with some follow-up thoughts that Glasser had about FCA’s
views:
I feel that there’s only one thing to say that
will protect our students who are so
victimized by religious views that
discriminate against them: I am an adult on
your campus, and these views are bullshit to
me. They have no validity. . . . I’m not
willing to be the enabler for this kind of
“religious freedom” anymore.
Principal Espiritu and Glasser subsequently participated
in a school leadership committee meeting where they
discussed FCA. The meeting minutes reflect that Principal
Espiritu stated the FCA “pledge” defied Pioneer’s “core
values” and that the committee needed to take a “united
stance.” Principal Espiritu subsequently consulted with
District officials, including Deputy Superintendent Stephen
McMahon, who advised that if FCA discriminated in its
leadership eligibility on the basis of sexual orientation, FCA
would be in direct violation of the District’s
nondiscrimination policy. The District’s nondiscrimination
policy prohibited discrimination based on “perceived ethnic
group, religion, gender, gender identity, gender expression,
color, race, ancestry, national origin, and physical or mental
disability, age or sexual orientation.”
66 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
In May 2019, Principal Espiritu informed Pioneer FCA’s
student leaders that FCA would no longer be an ASB-
recognized club. FCA was derecognized because the District
determined that FCA’s student leadership criteria
discriminated on the basis of sexual orientation because “a
student could not be an officer of [FCA] if they were
homosexual.”2 Principal Espiritu testified that FCA can
become an ASB-recognized club again only if it does not
require its leaders to agree to abide by the Sexual Purity
Statement. And an article in Pioneer’s school newspaper
quoted Principal Espiritu as stating that FCA’s Sexual Purity
Statement “is of a discriminatory nature” and the school
“decided that we are no longer going to be affiliated with
them.”
According to some District officials, this was the first
time that the District had revoked ASB recognition for any
club. Though this was not the first time that the District had,
in its discretion, singled out groups for additional scrutiny.
2
There are some inconsistencies in the record regarding which specific
FCA statements factored into the District’s derecognition decision or
could factor into the District’s future decisions regarding FCA’s ASB
status. For example, Principal Espiritu testified during his deposition that
the decision was based on FCA’s Sexual Purity Statement, which was
sent to him by Glasser. But Deputy Superintendent McMahon stated
there were “multiple versions” of the Statement of Faith that he viewed
“over the course of time” and that he recalled as meaning “being
homosexual and being an officer of FCA were mutually exclusive.”
Principal Espiritu testified both that it was sufficient to deny FCA
recognition simply because the Sexual Purity Statement existed at all,
even if FCA did not require its leaders to affirm it, and that FCA may be
recognized again if it does not require its leaders to affirm the statement.
The District’s deposition testimony is that both FCA’s requirement that
its leaders affirm a belief in Christianity, and that it affirm marriage is
between a man and a woman, violate its nondiscrimination policy.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 67
For example, Principal Espiritu testified that factors he may
look at when determining whether to grant ASB-approval to
a student group include whether the group “foster[s] a safe
sense of belonging” and whether it is something “positive”
or something “controversial.” Around 2016 or 2017,
students wanted to form a “Make America Great Again”
group. But according to Principal Espiritu, “that was a
controversial topic” at the time, so he and other school
officials approached the student leaders involved with that
group to see if “they would reconsider the name of the club
because it was creating an environment that students didn’t
feel safe here on campus.” Principal Espiritu further
explained that in identifying which groups may be deemed
“controversial,” he “rel[ies] heavily on [the] pulse of our
stakeholders, especially our students and staff, and what is
happening in the world outside of us.” As an example, he
stated that if a student group supported police officers, that
could be “controversial in 2020 or 2021” and he may have a
conversation with such a hypothetical group to see if they
“would reconsider, you know, their purpose.” Though he did
note that he also tries to rely on “District policies” and
guidance from school counsel.
Both Principal Espiritu and Pioneer Activities Director
Michelle Mayhew are responsible for overseeing and
approving ASB applications. Mayhew testified that student
leaders are in general responsible for determining a group’s
interests and purpose and are the “face of the club.” The
District also recognizes that “student leaders [are] important
for kind of setting the direction and tenor of the group,” and
that a “fairly typical manifestation of leadership of a club” is
that the leader “help[s] communicate kind of the message
and purpose of a student club.”
68 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
After FCA was derecognized, the District relegated FCA
to a made-for-FCA “student interest group” category, which
permitted FCA to advertise and meet at the school,
participate in club rush, and post flyers and announcements
on campus. But as a non-ASB-recognized club, FCA no
longer had access to ASB benefits, which include priority
access to school meeting spaces and inclusion in the
yearbook and official school-club lists. FCA was denied
ASB recognition for the 2019–2020 school year, and
students organized and held protests outside of FCA’s
meetings.
D. The District’s New Policy
In April 2020, two Pioneer FCA student leaders and FCA
National sued the District and certain school officials.
Amid—and because of—the litigation, the District adopted
a “new” non-discrimination policy. The District describes its
new policy as an “All-Comers Policy” that requires all clubs
to allow any student to become a member or leader of the
club “regardless of his or her status or beliefs.” The District
also created an “ASB Affirmation Form” that all ASB clubs
must submit. Clubs seeking ASB recognition must affirm
that they will allow any student to “seek or hold leadership
positions . . . regardless of his status or beliefs.”
The COVID-19 pandemic disrupted school activities for
the 2020–2021 school year. But in anticipation of the 2021–
2022 school year, the District trained its activities directors
and site administrators on its revised ASB-recognition
process, amended the ASB application, and created
standardized application forms and club constitutions
requiring ASB-recognized clubs to affirm that they would
abide by the District’s All-Comers Policy. All ASB-
approved clubs in 2021–2022 were supposed to sign the
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 69
affirmation agreeing to follow the All-Comers Policy and
adopt constitutions prohibiting discrimination in club
membership and leadership.
ASB clubs are expressly permitted, however, to adopt
what the District deems “non-discriminatory criteria” for
club membership and leadership. And Mayhew, who shares
responsibility for applying the All-Comers Policy with
Principal Espiritu, testified that under the All-Comers
Policy, ASB clubs may continue to limit their membership
or leadership based on various criteria, including gender
identity, age, political affiliation, or “good moral character.”
E. District Court Decision
FCA sought a preliminary injunction requiring the
District to reinstate FCA as an ASB-recognized club pending
the outcome of this litigation. The district court denied
FCA’s motion, concluding that FCA was unlikely to succeed
on the merits of its claims. Specifically, the district court
concluded that FCA was not likely to succeed on its EAA
claim because Truth v. Kent School District held that school
nondiscrimination policies are facially content neutral and
do not implicate any rights a student group “might enjoy
under the Act” “to the extent [the nondiscrimination
policies] proscribe” the group’s “general membership
restrictions.” 542 F.3d 634, 647 (9th Cir. 2008), overruled
on other grounds by Los Angeles County v. Humphries, 562
U.S. 29 (2010). The district court recognized that Truth dealt
only with membership, not leadership, restrictions. But the
district court concluded Truth nonetheless applied to FCA’s
leadership restrictions because the District’s policy was
similar to the policy at issue in Truth and because the policy
prohibits discriminatory conduct, not speech. The district
70 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
court also concluded that FCA failed to establish that the
District selectively enforces its policy.
Additionally, the district court concluded that FCA was
unlikely to succeed on its First Amendment free-speech and
freedom-of-association claims. Guided by Christian Legal
Society v. Martinez, 561 U.S. 661 (2010), and Alpha Delta
Chi-Delta Chapter v. Reed, 648 F.3d 790, 804–05 (9th Cir.
2011), the district court held that the District’s
nondiscrimination policy is reasonable in light of the
purpose of the ASB program and the policy is content and
viewpoint neutral. The district court reasoned that the
policy’s purpose is to ensure the school’s resources are
“open to all” and is therefore “unrelated to the suppression
of expression.” The district court rejected FCA’s argument
that the policy’s exceptions for non-discriminatory criteria
make it content or viewpoint based.
Finally, the district court concluded that FCA was
unlikely to succeed on its First Amendment free exercise
claim. The district court rejected FCA’s argument that, as the
Second Circuit has held, student leaders of religious student
groups are critical to controlling the expressive content of
group meetings. See Hsu v. Roslyn Union Free Sch. Dist., 85
F.3d 839, 856–62 (2d Cir. 1996). The district court found
Hsu unpersuasive, explaining that Martinez and Alpha Delta
upheld nondiscrimination policies applicable to both
members and leaders.
II. DISCUSSION
A. Standard of Review
The district court’s denial of FCA’s motion for a
preliminary injunction is reviewed for an abuse of discretion.
See S.C. by K.G. v. Lincoln County Sch. Dist., 16 F.4th 587,
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 71
591 (9th Cir. 2021). But the district court’s legal conclusions
are reviewed de novo. Sw. Voter Registration Educ. Project
v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per
curiam).
B. Equal Access Act
FCA alleges that the District violated the EAA by
refusing to recognize FCA as an official ASB club because
it requires its student leaders (but not its members) to affirm
various religious beliefs, including that marriage and sexual
intimacy are meant to be between a man and a woman. FCA
argues that the District’s application of its nondiscrimination
policy is unlawfully content-based because regulating who
can serve as a group’s leader “inescapably regulates the
content of” the group’s message. The District disagrees,
arguing that its nondiscrimination policy is neutral and
generally applicable and that Martinez forecloses this
argument.
The EAA prohibits public secondary schools that receive
federal funds and provide a “limited open forum” from
“deny[ing] equal access or a fair opportunity to, or
discriminat[ing] against, any students who wish to conduct a
meeting within that limited open forum on the basis of the
religious, political, philosophical, or other content of the
speech at such meetings.” 20 U.S.C. § 4071(a). If a school is
subject to the EAA, a plaintiff asserting a violation of the
Act must prove: “1) a denial of equal access, or fair
opportunity, or discrimination; 2) that is based on the
‘content of the speech’ at its meetings.” Truth, 542 F.3d at
645.
Congress enacted the EAA to extend to public secondary
schools the protection afforded to university students in
Widmar v. Vincent, 454 U.S. 263 (1981). See Mergens, 496
72 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
U.S. at 235. In Widmar, the Supreme Court held that a
university violated students’ right to free speech by
prohibiting them from using university facilities to engage
in “religious worship and discussion” when other student
groups were allowed to use school facilities. 454 U.S. at269–77. Given this origin, “Congress clearly sought to
prohibit schools from discriminating on the basis of the
content of a student group’s speech,” Mergens, 496 U.S. at
241, particularly “religious speech,” id. at 239. As a result,
the Supreme Court has instructed that the EAA is to be
interpreted broadly. Id.
Even though Congress was motivated to enact the EAA
by the Court’s analysis of the First Amendment right to free
speech, First Amendment jurisprudence informs, but does
not govern, EAA claims. That is, the First Amendment and
the EAA are not coextensive. For example, the limited-
public-forum doctrine applies in determining whether a
school has an obligation to grant the full benefits of club
recognition to a student group under the First Amendment.
See Martinez, 561 U.S. at 680–85. But Congress used a
different standard in the EAA—“limited open forum”—
which it uniquely defined. See Mergens, 496 U.S. at 241–42;
see also 20 U.S.C. § 4071(b). Courts must apply Congress’s
definition when deciding claims brought under the EAA. See
Mergens, 496 U.S. at 241–42.
Additionally, under the First Amendment, if a school has
provided a limited public forum, a restriction on speech is
invalid only if it: (1) is unreasonable in light of the “forum’s
function and ‘all the surrounding circumstances,’” or (2)
discriminates based on viewpoint. See Martinez, 561 U.S. at
685 (citation omitted). But a school subject to the EAA is
categorically prohibited from discriminating based on the
content of a group’s speech, regardless of whether the
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 73
school’s policy or regulation is reasonable. See 20 U.S.C. §
4071(a) (providing, without exception, that a school may not
deny equal access “on the basis of the . . . content of the
speech at [club] meetings”); see also Mergens, 496 U.S. at
236, 241 (explaining that where obligations under the EAA
are triggered, “the school may not deny . . . clubs, on the
basis of the content of their speech, equal access,” and to
avoid its EAA obligations, a school may either close the
forum or reject federal funding). And content discrimination
(the EAA’s standard) and viewpoint discrimination (the First
Amendment standard) are not the same thing. See Reed v.
Town of Gilbert, 576 U.S. 155, 169 (2015) (“[A] speech
regulation targeted at specific subject matter is content based
even if it does not discriminate among viewpoints within that
subject matter.”).
In this case, the parties agree that the EAA applies and
that the ASB program constitutes a “limited open forum”
under the Act. Thus, in determining whether FCA is likely
to succeed on its EAA claim, we must decide whether the
District (1) denied FCA equal access, (2) “based on the
‘content of [FCA’s] speech.’” Truth, 542 F.3d at 645.
1. Equal Access
Whether the District denied FCA equal access is easily
resolved. A student club is denied equal access within the
meaning of the EAA when it is denied the benefits of official
recognition and other clubs are receiving those benefits. See
Mergens, 496 U.S. at 247; see also Prince v. Jacoby, 303
F.3d 1074, 1086–87 (9th Cir. 2002) (discussing Mergens and
holding that “to the extent that [a] school allows ASB clubs
[certain benefits], it cannot then discriminate against . . .
clubs that seek the same [benefits]”). Here, it is undisputed
that the District denied—and intends to continue to deny—
74 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
ASB recognition to FCA because of its faith-based eligibility
criteria for its student leaders. This is a denial of equal access
under the EAA. See Mergens, 496 U.S. at 247. The District
does not argue otherwise, focusing only on whether its
application of its nondiscrimination policy3 is content based.
2. Content-Based Regulation
Now we get to the heart of the matter: did the District
deny FCA equal access because of the “content of [FCA’s]
speech”? See 20 U.S.C. § 4071(a).
The EAA does not define “content of the speech.” See
id.; see also Truth, 542 F.3d at 645. But “that phrase has a
particular meaning in First Amendment jurisprudence.”
Truth, 542 U.S. at 645. As discussed, First Amendment
jurisprudence is a useful tool in this part of the EAA analysis
given that the EAA “extended the reasoning” of one of the
Supreme Court’s First Amendment free-speech cases. See
Mergens, 496 U.S. at 235; see also Truth, 542 F.3d at 645–
46 (explaining that “[w]here there may be uncertainty
[regarding the meaning of the EAA], . . . we rely on . . . cases
deciding analogous issues under the First Amendment”); see
also Hsu, 85 F.3d at 855–57 (adopting a similar approach,
reasoning that “since the Act creates an analog to the First
Amendment’s default rule banning content-based speech
discrimination, cases discussing the meaning of ‘speech’ in
First Amendment jurisprudence are also interpretive tools
for understanding the Act”).
Looking to the First Amendment, then, under the Free
Speech Clause a regulation or policy is content based where
3
As the court explains, the “new” All-Comers Policy and the previous
nondiscrimination policy are indistinguishable for purposes of analyzing
the merits of FCA’s claims.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 75
it “applies to particular speech because of the topic discussed
or the idea or message expressed.” Reed, 576 U.S. at 163. A
policy may be content based where the policy itself contains
content-based distinctions or because the policy cannot be
justified without reference to speech content. See id. at 163–
64. Discrimination against a specific subject matter “is
content based even if it does not discriminate among
viewpoints within that subject matter.” Id. at 169. In other
words, the government may not “single[] out specific subject
matter for differential treatment, even if it does not target
viewpoints within that subject matter.” Id. For example, the
Supreme Court in Reed held that a sign regulation was
content based because it defined various categories of signs
based on the type of information they conveyed and
subjected each category to different treatment. Id. at 164.
The Court explained that this scheme was facially content
discriminatory because determining which regulation
applied “depend[ed] entirely on the communicative content
of the sign.” Id.
The District argues that its nondiscrimination policy is
not content based because it prohibits conduct, not speech.
In making this distinction, it relies primarily on Martinez,
where the Court stated that an all-comers policy “aim[ed] at
the act of rejecting would-be group members without
reference to the reasons motivating that behavior” and that
the school’s “desire to redress the perceived harms of
exclusionary membership policies provide[d] an adequate
explanation for its all-comers condition over and above mere
disagreement with any student group’s beliefs or biases.”
561 U.S. at 696 (alterations adopted) (internal quotation
marks and citation omitted). This discussion in Martinez is
not controlling here for at least two reasons.
76 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
First, Martinez’s conclusion that the policy at issue in
that case was content neutral was based on a factual
stipulation the parties entered into that was different from the
policy language itself. See id. at 675–76; see also id. at 707,
715 (Alito, J., dissenting) (explaining that Martinez failed to
“address the constitutionality of the very different policy that
Hastings invoked when it denied CLS’s application for
registration” by relying on the joint stipulation). Like here,
the school policy as written prevented discrimination based
on certain categories such as race, religion, disability, age,
and sexual orientation. Id. at 670–71, 675. But the parties
stipulated that the school did not have just a
nondiscrimination policy, it had an all-comers policy,
because the school “require[d] that registered student
organizations allow any student to participate, become a
member, or seek leadership positions in the organization,
regardless of [her] status or beliefs.” Id. at 675 (second
alteration in original); see also id. at 676–78. The Court
specifically noted that the school did “not pick and choose
which organizations must comply with the [all-comers]
policy on the basis of viewpoint,” id. at 695 n.25, and that it
was “hard to imagine a more viewpoint-neutral policy than
one requiring all student groups to accept all comers,” id. at
694. The Court therefore concluded that it was appropriate
to disregard prior cases where schools “singled out
organizations for disfavored treatment because of their
points of view.” Id. at 694.
Those are not the facts on the ground here. District
officials do pick and choose which clubs must comply with
the policy and which clubs are exempted from the policy
based on the nature and content of the clubs’ selection
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 77
criteria.4 See Reed, 576 U.S. at 163–64 (holding that a
regulation is content based where it subjects different
“categories to different restrictions”). Pioneer’s Activities
Director testified that ASB clubs could limit their
membership based on some discriminatory criteria,
including gender identity, age, political affiliation, and
“moral character.” And this is not just a theoretical
possibility—school officials across the District did exercise
their discretion to effectively grant exemptions to some clubs
based on these criteria. For example, the District recognized
the South Asian Heritage club as an ASB club despite that
club stating it would “prioritize” acceptance of South Asian
members. And the Senior Women club was recognized even
though its membership was limited to “seniors who identify
as female.” Likewise, the Big Sister Little Sister’s club
constitution limited membership to females but was
nonetheless ASB-recognized because, according to
Principal Espiritu, “it was something of a mentorship for our
freshman students who are females to be mentored by . . .
senior female students.” “Girl Talk of Pioneer High School”
was also ASB recognized despite its club constitution stating
that membership was limited to “female students.”
Likewise, the record shows that clubs the District deems
“controversial” are singled out for closer scrutiny or—in
FCA’s case—outright denial of ASB approval. Students
seeking to form a “Make America Great Again” club were
confronted by District officials asking them to reconsider the
4
As discussed below, there are numerous examples in the record
evincing the District’s past and likely future selective enforcement. The
record therefore does not support the district court’s finding to the
contrary, rendering the district court’s finding clear error. See All. for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (discussing
standard of review).
78 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
club name because in the District’s view, “it was creating an
environment that students didn’t feel safe” in and because
the District considers whether a group is “something
positive” when determining whether to approve it. Principal
Espiritu further explained that he may discourage other
“controversial” clubs. For example, he testified that if
students wanted to form a club supporting police officers, he
may speak to them about “reconsider[ing] . . . their purpose”
given recent controversy surrounding that issue.
The District’s All-Comers Policy allows student groups
to adopt what the District considers to be “non-
discriminatory criteria regarding being a member [or]
leader.” “The restrictions in the [District’s policy] that apply
to any given [leadership criteria] thus depend entirely on
the” content of the criteria, Reed, 576 U.S. at 164, which is
fundamentally different than the stipulated categorical all-
comers policy at issue in Martinez. Affinity-affiliation
requirements may be fine, but FCA’s faith-based
requirement is not. This is textbook content discrimination.5
See id. For this reason, different than in Martinez, where the
school did “not pick and choose which organizations must
comply with the policy,” 561 U.S. at 695 n.25, disregarding
cases addressing schools that “singled out organizations for
disfavored treatment because of their points of view,” id. at
694, is not appropriate here.
5
As the court concludes, our holding in Alpha Delta that a policy is
content neutral so long as the purpose of the policy alone has a benign
motive, 648 F.3d at 801, is inconsistent with Reed, 576 U.S. 155, and is
no longer good law. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc), overruled on other grounds by Sanchez v. Mayorkas,
141 S. Ct. 1809 (2021).
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 79
Second, the religious club in Martinez imposed faith-
based criteria for both members and leaders. Id. at 672–73.
The Court focused its viewpoint- and content-neutrality
analysis on open membership; it did not address the
relevance of ideology-based leadership criteria.6 See id. at
694–97. But here, FCA imposes faith-based requirements
only on its student leaders; membership in FCA is open to
all. This is a distinction with a difference—regulating who
can lead and speak for a group uniquely impacts the group’s
operation and speech. And the Court’s failure to grapple with
the implications of leadership criteria indicates that it did not
consider that issue. See id. at 678–97.
Martinez did reject concerns that a student club could be
vulnerable to “hostile takeovers” if they “must open their
arms to all,” reasoning that students self-select based on their
interests and would “not endeavor en masse to join—let
alone seek leadership positions in—groups pursuing
missions wholly at odds with their personal beliefs.” Id. at
692–93. The Court’s discussion of this issue relates to
membership criteria, which, again, is not at issue here. But
to the extent it is relevant, whether a group is at risk of a
“hostile takeover” if it cannot control who serves as its
leader is different from whether the group’s ability to control
the content of its speech is undermined as a general matter.
The Constitution’s concern about content-based regulation
and limiting an expressive group’s ability to choose its
leader is not limited to complete frustration of expression, as
6
The Court did not even reference the Second Circuit’s decision in Hsu,
which concluded that a school’s decision to deny recognition to a
religious club was based on the club’s speech content, where the club
imposed religious requirements only on its officers, 85 F.3d at 856–59.
80 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
evidenced by several of the Court’s First Amendment cases
arising in varied contexts.
For example, in Hurley v. Irish–American Gay, Lesbian
& Bisexual Group of Boston, the Court recognized that
expressive groups have a right to control the content of their
expression. 515 U.S. 557 (1995). There, the organizers of a
St. Patrick’s Day parade were prohibited from excluding an
Irish gay pride group based on a state nondiscrimination law,
which the Court held was a violation of the First
Amendment. Id. at 561–66, 572–75. The Court reasoned that
the ability to select which groups march in a parade impacts
the overall message of the parade—in other words, the
parade organizers’ speech. See id. at 574–75. Thus, applying
an antidiscrimination law to prevent the organizers from
limiting who could participate in the parade “essentially
require[d] [the organizers] to alter the expressive content of
their parade.” Id. at 572–73.
This concern about the ability to control the content of
one’s speech is particularly consequential where
government regulation impacts who an ideological group
can select as its leader. It is axiomatic that “[w]ho speaks on
[a group’s] behalf . . . colors what [message] is conveyed.”
Martinez, 561 U.S. at 680; see also Reed, 576 U.S. at 170
(explaining that speaker-based restrictions “are all too often
simply a means to control content”). And the Supreme Court
has recognized this in more than one context.
A pair of First Amendment right-of-association cases
demonstrate that ideological leadership restrictions, more
than membership restrictions, govern the content of a
group’s speech. In Roberts v. United States Jaycees, the
Court addressed whether prohibiting the Jaycees from
excluding female members under a state nondiscrimination
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 81
law violated the group’s right of association. 468 U.S. 609(1984). The Court recognized that prohibiting a group from
limiting who can be a member of the group “may impair the
ability of the original members to express only those views
that brought them together.” Id. at 623. But nonetheless, the
Court held that the state’s “compelling interest in eradicating
discrimination against its female citizens justifie[d] the
impact that application of the statute to the Jaycees may have
on the male members’ associational freedoms.” Id. But in
Boy Scouts of America v. Dale, the Court addressed whether
a state nondiscrimination law could prohibit the Boy Scouts
from refusing to accept homosexual assistant scoutmasters.
530 U.S. 640 (2000). The Court concluded that requiring the
Boy Scouts to accept homosexual assistant scoutmasters
“significantly burden[ed] the Boy Scouts’ desire to not
‘promote homosexual conduct as a legitimate form of
behavior’” and violated its right to expressive association.
Id. at 653–659. The Boy Scouts’ ability to disseminate its
chosen message was affected by regulation of who it must
accept as leaders because “the First Amendment protects the
Boy Scouts’ method of expression,” including its desire that
its “leaders . . . avoid questions of sexuality and teach only
by example” by embodying the Boy Scouts’ values in their
own life. Id. at 655 (emphases added).
An obvious distinction between Roberts and Boy Scouts
of America is that the latter dealt with regulation of the
group’s leadership and the former dealt only with regulation
of a group’s membership. Indeed, this distinction was well
articulated by Judge Landau of the New Jersey Court of
Appeals in Boy Scouts of America before the case reached
the Supreme Court. Judge Landau noted that the case
presented “two separate issues, restriction of membership
and restriction of leadership,” and that by forcing the Boy
82 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
Scouts to allow homosexuals “to serve as . . . volunteer
leader[s], we force them equally to endorse [such leader’s]
symbolic, if not openly articulated, message.” Dale v. Boy
Scouts of Am., 308 N.J. Super. 516, 562–63 (App. Div. 1998)
(Landau, J., concurring and dissenting) (emphases added).
The influence that group leaders have on the content of
the group’s expression was also recognized by the Court in
its adoption of the ministerial exception, which prevents
generally applicable employment-discrimination laws from
governing “the employment relationship between a religious
institution and its ministers.” Hosanna-Tabor Evangelical
Lutheran Church and Sch. v. EEOC, 565 U.S. 171, 188
(2012). In Hosanna-Tabor, a teacher at a Lutheran church-
operated school and the Equal Employment Opportunity
Commission brought a disability-discrimination lawsuit
after she was terminated. Id. at 178–80. The church invoked
the ministerial exception and argued that the suit was barred
by the First Amendment because it concerned an
employment relationship between a religious institution and
its minister. Id. at 180. Detailing the historical backdrop
leading to adoption of the First Amendment’s Religion
Clauses, the Court explained that these provisions “ensured
that the new Federal Government—unlike the English
Crown—would have no role in filling ecclesiastical offices.”
Id. at 182–84. “The Establishment Clause prevents the
Government from appointing ministers, and the Free
Exercise Clause prevents it from interfering with the
freedom of religious groups to select their own.” Id. at 184.
The Court therefore concluded that the ministerial exception,
rooted in the Religion Clauses, applied to bar the teacher’s
lawsuit because she was held out as a minister and her job
duties included communicating religious ideology, and the
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 83
church had constitutionally protected autonomy to select its
own ministers. Id. at 190–94.
Following this decision, in Our Lady of Guadalupe
School v. Morrisey-Berru the Court rejected a rigid
application of the factors it had identified in Hosanna-Tabor
for determining who qualifies as a “minister” under the
ministerial exception because “[w]hat matters, at bottom, is
what [the individual] does.” 140 S. Ct. 2049, 2064 (2020).
The Court explained that control over religious leadership is
vital because without it, “a wayward minister’s preaching,
teaching, and counseling could contradict the church’s tenets
and lead the congregation away from the faith.” Id. at 2060.
Because religious expression and exercise can be
manipulated or wholly undermined by those directing the
group’s activity, any attempt “even to influence” who serves
in such roles runs afoul of the Constitution. See id. (emphasis
added).
I do not suggest that right-of-association or ministerial-
exception cases directly control whether the District’s
actions in this case are content based for purposes of the
EAA. But First Amendment jurisprudence is a useful tool in
this context. See Truth, 542 U.S. at 645. And the principles
discussed in these cases about the influence of leaders in
expressive groups are not inherently limited to the specific
contexts in which they arose. Taking a holistic view of the
Court’s decisions in this area, two relevant principles
emerge. First, a policy that regulates based on subject matter
is content based. See Reed, 576 U.S. at 163–64. And second,
an ideological group’s ability to control who can serve as its
leader and speak on its behalf directly correlates to the
content of the group’s speech. See Hurley, 515 U.S. at 572–
75 (requiring parade organizers to include certain marchers
in the parade infringed on group’s ability to control its
84 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
message and therefore violated the group’s First
Amendment rights); see also Boy Scouts of Am., 530 U.S. at
653–56 (holding that requiring Boy Scouts to accept a gay
assistant scoutmaster would “interfere with the Boy Scouts’
choice not to propound a point of view contrary to its
beliefs”); Our Lady of Guadalupe, 140 S. Ct. at 2060(explaining that a religious group’s ability to communicate
its message and maintain its mission depends on its ability
to select its ministers without state interference). Thus, it is
not a leap to conclude that regulating a group’s ability to
impose belief-based or ideology-based eligibility criteria
specifically for its leaders is a content-based restriction. See
Reed, 576 U.S. at 170 (“Speech restrictions based on the
identity of the speaker are all too often simply a means to
control content.” (alteration and citation omitted)).
Applying these principles to the present case
demonstrates that the District’s actions are content based
because it refuses to recognize FCA as an ASB club because
FCA requires its student leaders to subscribe to specific
religious beliefs. The responsibility of student-club leaders
generally is significant because ASB clubs must be student-
initiated and their meetings may not be run or controlled by
school employees or agents. But these responsibilities are
even more pronounced in religious clubs, because while
ASB clubs have faculty advisors, faculty involvement in
religious clubs is limited to “a non-participatory capacity.”
See 20 U.S.C. § 4071(c)(3) (“[E]mployees or agents of the
school or government [may be] present at religious meetings
only in a nonparticipatory capacity”); see also Hsu, 85 F.3d
at 861 (explaining that because of this provision in the EAA,
“political clubs and chess clubs may have faculty sponsors
to promote institutional stability, help guarantee that new
leaders are committed to the club’s cause, and ensure that the
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 85
club remains true to its purpose, [but] religious clubs do not
have that protection”).
Specific to FCA, student leaders are responsible for
“lead[ing] and participat[ing] in prayer, worship, and
religious teaching,” “help[ing] decide the content of
meetings,” “select[ing] guest speakers and identify[ing]
religious topics to cover,” and “communicat[ing] FCA’s
message when interacting with administrators, staff, faculty,
and students at their schools.” Of course, given that these
responsibilities are tied to FCA’s expression, FCA requires
students wanting to perform these functions to affirm
agreement with FCA’s religious tenets and agree to hold
themselves “to a higher standard of biblical lifestyle and
conduct” and “do their best to live and conduct themselves
in accordance with biblical values.” Cf. Boy Scouts of Am.,
530 U.S. at 649 (explaining that Boy Scout values found in
the Scout Oath included “[t]o do my duty to God and my
country” and “[t]o keep myself . . . morally straight”).
Likewise, FCA’s requirement that its student leaders “not . .
. subscribe to or promote any religious beliefs inconsistent
with [FCA’s] beliefs” clearly correlates to FCA’s ability to
fulfill its purpose—ministry. Cf. id. at 655 (“[T]he First
Amendment protects the Boy Scouts’ method of
expression,” including by having Scout leaders “avoid
questions of sexuality and teach only by example[.]”).
FCA’s student leaders directly govern operation of the club
and the content of its expression, and FCA’s faith-based
student-leadership requirement is intended to preserve “the
content and credibility of [FCA’s] religio[us] message.” See
Hosanna-Tabor, 565 U.S. at 201 (Alito, J., concurring).
The District refused to recognize FCA as an ASB club
because it believes FCA’s faith-based leadership criteria
violate the District’s policy preventing discrimination based
86 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
on sexual orientation. The District’s argument that it is
regulating FCA’s discriminatory actions, not its beliefs and
speech related to homosexuality, falls flat. FCA membership
is open to all, and the District concedes that “student leaders
[are] important for . . . setting the direction and tenor of the
group” and that student leaders “help communicate . . . the
message and purpose of a student club.” In arguing that its
application of its nondiscrimination policy is content neutral,
the District ignores, or deems irrelevant, the reality (which it
accepts) that influencing who leads an expressive group
necessarily influences the expression of the group. And
applicable here, the Supreme Court has aptly noted that “a
wayward minister’s preaching, teaching, and counseling”
could undermine a religious group’s “tenets and lead the
congregation away from the faith.” Our Lady of Guadalupe
140 S. Ct. at 2060.
This point was further pressed by amici in this case. The
Jewish Coalition for Religious Liberty explained that a
religious group’s leaders may help fulfill the group’s
purpose by, for example, ensuring that religiously acceptable
food is served or ensuring proper observance of religious
rituals and holidays. See Brief of the Jewish Coalition for
Religious Liberty as Amicus Curiae in Support of Plaintiffs-
Appellants, Dkt. No. 114, at 4, 14–19. This amicus further
notes that not only is selecting a leader who follows the
tenets of the religion necessary to ensuring that the group
properly observes its religious traditions and practices, it
also impacts the group’s ability to attract additional
members. See id. at 12, 16. Professor Michael McConnell
further explains that Christian students looking to practice
their faith and find religious mentorship would not be
attracted to a Christian student group led by an atheist. See
Brief for Amicus Curiae Professor Michael W. McConnell
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 87
in Support of Plaintiffs-Appellants, Dkt. No. 117, at 12. The
same would be true for any other ideological group.
Preventing a group formed around an ideology from
requiring its leaders to espouse the group’s ideology is a
content-based regulation because it undermines the group’s
ability to control its identity and messaging, i.e., its speech.
This court has already recognized that leadership
selectivity is “readily distinguishable” from membership
selectivity. See Truth, 542 F.3d at 647. In Truth, we held that
the key feature distinguishing that case from Hsu was that
the club at issue in Truth restricted “general membership.”
See id. The Second Circuit in Hsu had held that plaintiffs
were likely to prevail on their EAA claim where the school
refused to recognize a religious club that required only its
officers to be “professed Christians” because it violated the
school’s nondiscrimination policy. 85 F.3d at 849, 859–62.
Hsu rejected the argument that the school’s refusal to
recognize the club was based on the club’s “‘act’ of
excluding non-Christians from leadership” because
restricting “people of other religions from conducting its
meetings” was a choice the club made to “protect the
expressive content of the meetings.”7 Id. at 856–59.
We have not previously confronted a case like this or like
Hsu where a student club discriminates only in its leadership
eligibility. See Truth, 542 F.3d at 647 (distinguishing Hsu
because “we [we]re only concerned with [plaintiff]’s
7
Hsu reasoned that the leadership requirement was “defensible” only to
club officers whose duties related to running the club’s “programs” such
as “leading Christian prayers and devotions,” including the “President,
Vice-President, and Music Coordinator of the club.” Id. at 858. Even
accepting that limitation, FCA’s leadership eligibility criteria is
defensible because, as discussed, FCA leaders are tasked with overseeing
all aspects of the club’s meetings and its worship activities.
88 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
general membership requirements”); see also Alpha Delta,
648 F.3d at 795–96 (addressing claims by group that
required its “members and officers profess a specific
religious belief” (emphasis added)). With this narrower issue
now squarely before us, I would join the Second Circuit and
conclude that when a school applies its nondiscrimination
policy to a student club that limits only who can serve as a
club leader because of the club’s ideological leadership
criteria, such application is impermissibly content based. See
Hsu, 85 F.3d at 856–59.
In sum, this case does not involve a categorical all-
comers policy like that at issue in Martinez, and First
Amendment jurisprudence establishes that regulating who
can serve as the leader of ideological groups directly
implicates the content of the group’s speech. Thus, FCA is
likely to succeed in establishing that the District denied FCA
equal access to the ASB program because of the content of
FCA’s speech in violation of the EAA.
C. First Amendment Free Speech
Because FCA is likely to succeed on its EAA claim,
there is no need to address any of its constitutional claims.
See Mergens, 496 U.S. at 247 (holding that where a case can
be decided under the EAA, a court need not decide whether
the First Amendment “requires the same result”); see also
Blum v. Bacon, 457 U.S. 132, 137 (1982) (“[O]rdinarily we
first address the statutory argument in order to avoid
unnecessary resolution of the constitutional issue.”). But
where First Amendment free-speech jurisprudence informs
the EAA analysis and the analyses of these two claims is
similar, I briefly address the constitutional claim.
“The framers designed the Free Speech Clause of the
First Amendment to protect the ‘freedom to think as you will
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 89
and to speak as you think.’” 303 Creative LLC v. Elenis, 143
S. Ct. 2298, 2310 (2023) (citing Boy Scouts of Am., 530 U.S.
at 660–61). The First Amendment’s speech “protections
belong to all, including to speakers whose motives others
may find misinformed or offensive.” Id. at 2317; see also id.
at 2312. The Supreme Court has thus espoused a
“commitment to protect[] the speech rights of all comers, no
matter how controversial—or even repugnant—many may
find the message.” Id. at 2320. And it has “recognized that”
antidiscrimination laws are not “immune from the demands
of the Constitution,” however noble the goals of such laws
may be. Id. at 2315.
As discussed above, First Amendment free-speech and
freedom-of-expressive-association challenges related to
regulation of student-run clubs are analyzed under the
Supreme Court’s limited-public-forum doctrine. See
Martinez, 561 U.S. at 679–80. Under this framework, a
policy or regulation is permissible if it is (1) reasonable in
light of the forum’s function and surrounding circumstances,
and (2) viewpoint neutral. Id. at 685. I address only the
second issue.
The government engages in viewpoint discrimination
where it targets “not subject matter, but particular views
taken by speakers on a subject.” Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). In other
words, viewpoint discrimination is a “blatant” or “egregious
form of content discrimination.” Id. A law disfavoring ideas
or messages the government finds offensive is viewpoint
90 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
discriminatory. Iancu v. Brunetti, 139 S. Ct. 2294, 2299–301
(2019).8
For example, in Rosenberger, the founder of a magazine
with a “Christian viewpoint” brought a First Amendment
free speech claim against the University of Virginia after it
declined to provide student-activity-fee funding to the
publication because it was a “religious activity” not entitled
to such funding under the University’s guidelines. 515 U.S.
at 823–27. The Supreme Court held that the funding denial
was impermissible viewpoint discrimination because the
University selected “for disfavored treatment those student
journalistic efforts with religious editorial viewpoints.” Id. at
831. The Court further explained that “[r]eligion may be a
vast area of inquiry, but it also provides, as it did here, a
specific premise, a perspective, a standpoint from which a
variety of subjects may be discussed and considered. The
prohibited perspective, not the general subject matter,
resulted in the [funding] refusal.” Id. And in Iancu, the Court
held that the Lanham Act’s prohibition against registering
“immoral or scandalous” trademarks was viewpoint
discriminatory because it “allow[ed] registration of
[trade]marks when their messages accord[ed] with, but not
when their messages def[ied], society’s sense of decency or
propriety,” and distinguished between ideas “inducing
8
Further, the government may engage in viewpoint discrimination where
it selectively enforces a neutral policy or law because it disagrees with a
message being expressed; choosing not to apply the policy to one view,
while using it to “silenc[e] another is quintessential viewpoint
discrimination.” Frederick Douglass Found., Inc. v. D.C., ___ F.4th ___,
No. 21-7108, 2023 WL 5209556, at *10 (D.C. Cir. Aug. 15, 2023); see
also Truth, 542 F.3d at 650–51 (recognizing that a facially neutral policy
may violate the First Amendment where it is selectively applied).
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 91
societal nods of approval and those provoking offense and
condemnation.” 139 S. Ct. at 2300.
Considering these precedents, the District’s selective
application of its nondiscrimination policy is viewpoint
discriminatory. Some clubs, like the Big Sister Little Sister’s
club, were allowed to impose discriminatory criteria where
they were seen positively as “something of a mentorship.”
This remained true even after the District adopted is “All-
Comers Policy”—the Senior Women club was granted ASB
recognition even though it limits it members based on gender
and age. But FCA was not recognized because its faith-based
leadership criteria were viewed as nefarious. See
Rosenberger, 515 U.S. at 831 (holding a school’s actions
were viewpoint discriminatory where a student group was
denied funding based on having a “prohibited perspective”).
This is evidenced by, among other things, Glasser’s
statement to Principal Espiritu that the views expressed in
FCA’s Sexual Purity Statement “[we]re bullshit to” him, and
Principal Espiritu stating that FCA’s Sexual Purity
Statement defied Pioneer’s “core values” and Pioneer
needed to take a “united stance” against such views. See id.And Principal Espiritu’s approach to managing student clubs
indicates viewpoint discrimination occurred where he
described that he had and would continue to single out clubs
with a purpose he deemed “controversial.”
In short, the record presented here indicates that the
District is impermissibly picking and choosing which
viewpoints are acceptable and which are not under the
pretext of prohibiting “discriminatory acts.” See id. (holding
that a school may not select a student group “for disfavored
treatment” because of the group’s viewpoint); cf. Martinez,
561 U.S. at 695 n.25 (concluding that viewpoint
discrimination was not an issue where the school did not
92 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
“pick and choose which organizations must comply with the
policy”). Thus, FCA is likely to succeed in showing that the
District has selectively enforced its policy against FCA and
may continue to selectively enforce its policy against FCA
and other clubs whose messages the District determines
“provok[e] offense and condemnation,” Iancu, 139 S. Ct. at
2300, but not against clubs whose views “accord with” and
do not “defy, [the District’s] sense of decency or propriety,”
id.III. CONCLUSION
The height of irony is that the District excluded FCA
students from fully participating in the ASB program in the
name of preventing discrimination to purportedly ensure that
all students feel welcome. In doing so, the District
selectively enforced its nondiscrimination policy to benefit
viewpoints that it favors to the detriment of viewpoints that
it disfavors. The suggestion that Martinez’s approval of a
true all-comers policy applies here is therefore baseless.
Moreover, the District targeted the content of FCA’s speech
by excluding FCA from equal participation in the ASB
program because FCA requires student leaders—who
implement FCA’s ministry purpose—to affirm specific
religious beliefs. FCA has met all the elements for obtaining
a preliminary injunction, and the district court erred in
concluding otherwise.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 93
M. SMITH, Circuit Judge, concurring in part and dissenting
in part, with whom Chief Circuit Judge MURGUIA and
Circuit Judge SUNG join with respect to Part II:
I agree that the plaintiffs are entitled to a preliminary
injunction because the District treats religious activities
differently than secular ones, in violation of the Supreme
Court’s decision in Tandon v. Newsom, 141 S. Ct. 1294
(2021) (per curiam). I write separately because the majority
opinion sweeps well beyond what is needed to resolve this
case and imprudently addresses open questions of law upon
an underdeveloped, preliminary-injunction record—even
though doing so has no impact on the relief to which the
plaintiffs are entitled. Separately, I dissent as to the
majority’s holding that plaintiffs would be likely to succeed
on a facial challenge to the District’s all-comers policy under
the Free Speech Clause.
I.
This case has an unusual posture for an en banc decision:
We are tasked only with determining whether, at this early
stage of the litigation, the plaintiffs are entitled to a
preliminary injunction. To do so, we need only determine
that they are likely to prevail on one of their claims. All. for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1139 (9th Cir.
2011) (“not reach[ing]” the plaintiff’s remaining claims after
finding a likelihood of success on the first).
This is a clear-cut differential-treatment case. Religion-
burdening government action is subject to strict scrutiny
“whenever [it] treat[s] any comparable secular activity more
favorably than religious exercise.” Tandon, 141 S. Ct. at
1296. As both the en banc majority and panel majority
explain, it is apparent from the record before us that the
94 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
District treated similarly situated secular student
organizations “more favorably than” FCA without a
compelling reason to do so. See Majority Opinion V.B;
Fellowship of Christian Athletes v. San Jose Unified Sch.
Dist. Bd. of Educ., 46 F.4th 1075, 1092–98 (9th Cir. 2022)
(vacated). Accordingly, I would stop my analysis there—
since that conclusion is sufficient to support a preliminary
injunction. The en banc majority goes on, however, to
decide several open questions of law even though doing so
is unnecessary to resolve this case.
First, the majority opinion holds in Section V.A that
pursuant to Fulton v. City of Philadelphia, 141 S. Ct. 1868
(2021), an alleged practice of—as opposed to a “formal
mechanism” for—providing individualized exemptions for
secular activities is sufficient to trigger strict scrutiny. In
Fulton, the Court examined “a contractual provision that
prohibited adoption agencies from discriminating against
prospective adoptive parents . . . ‘unless an exception is
granted by the Commissioner . . . in his/her sole discretion.’”
Tingley v. Ferguson, 47 F.4th 1055, 1088 (9th Cir. 2022)
(quoting Fulton 141 S. Ct. at 1878). The Court held that
“[t]he creation of a formal mechanism for granting
exceptions renders a policy not generally applicable” and
therefore subject to strict scrutiny. Fulton, 141 S. Ct. at
1879.
Interpreting Fulton, a panel of our court rejected its
application in a case where it found no “formal mechanism”
for exceptions existed, because there was no “provision in
the [applicable] law” for such exceptions. Tingley, 47 F.4th
at 1088. Now the majority concludes that Fulton applies to
this case, even though there are no provisions about
exceptions in either the nondiscrimination or all-comers
policies, and without analyzing the District’s written equity
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 95
policy. In so doing, the majority seemingly overrules
Tingley’s text-based approach sub silentio.
Second, the majority opinion holds in section V.C that
Masterpiece Cakeshop statement-based claims are
cognizable beyond the formal adjudication context in which
that case arose. See Masterpiece Cakeshop, Ltd. v. Colo.
C.R. Comm’n, 138 S. Ct. 1719, 1730 (2018) (“[T]he remarks
were made . . . by an adjudicatory body deciding a particular
case”). Again, in Tingley, we were careful to note that
Masterpiece Cakeshop encompassed only those comments
made by members of a formal, adjudicatory body. See
Tingley, 47 F.4th at 1086–87. Here, the panel expands the
reach of Masterpiece Cakeshop despite acknowledging that
“none of the[] statements [at issue here] were made during
an actual adjudication,” but are nonetheless worth evaluating
for hostility—again sub silentio overruling Tingley. Worse
yet, it does so on a preliminary-injunction record, and while
acknowledging that “there is some confusion” at this stage
of the litigation as to who the decisionmakers behind FCA’s
derecognition were—because “the district court made no
findings in this regard.” Indeed, the words Masterpiece
Cakeshop never even appear in the district court’s order
because it never addressed that claim in the first place.
I express no view on the merits of these holdings;
instead, I balk at reaching these issues in the first place.
Given the amount of our court’s resources that go into
hearing a case en banc, I understand the impulse to want to
make more of a case than is required. But even when sitting
en banc, our role is limited to adjudicating the issues
necessary to resolving the disputes before us—and I believe
we should resist the siren song beckoning us to do otherwise.
In deciding whether the plaintiffs are entitled to a
96 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
preliminary injunction in this case, I would reverse the
district court only on Tandon differential-treatment grounds.
II.
Though the body of the majority’s opinion focuses on
Free Exercise issues, in a footnote, the majority also holds
that plaintiffs are likely to succeed on their Free Speech
claim. Although the footnote does not distinguish between
facial and as-applied challenges, it can only be read to hold
that plaintiffs are likely to succeed on a facial challenge—a
conclusion with which I respectfully disagree.
Footnote eight states that plaintiffs are likely to succeed
because Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d
790 (9th Cir. 2011), has been abrogated by Reed v. Town of
Gilbert, 576 U.S. 155 (2015). In Alpha Delta, we held that
a nondiscrimination policy, as written, did not discriminate
on viewpoint in part because it was not implemented “for the
purpose of suppressing Plaintiffs’ viewpoint.” 648 F.3d at
801. Then in Reed, the Supreme Court held that “the
government’s benign motive, content-neutral justification,
or lack of ‘animus toward the ideas contained’ in the
regulated speech”—i.e., its purpose for a regulation—cannot
shield it from strict scrutiny if it is “content based on its
face.” 576 U.S. at 165. Therefore, according to the majority,
“even if the District were correct that there was no intent to
suppress FCA’s religious viewpoint . . . the District’s intent
is irrelevant in the Free Speech analysis.”
The majority, however, never holds that the all-comers
policy in this case (or for that matter, the nondiscrimination
policy in Alpha Delta) is “content based on its face,” like the
policy in Reed was. See Reed, 576 U.S. at 166 (“[W]e have
repeatedly considered whether a law is content neutral on its
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face before turning to the law’s justification or purpose.”)
(emphasis in original).
Moreover, the majority ignores a Supreme Court
decision that rejected a free speech facial challenge to an all-
comers policy very similar to the one in this case. In
Christian Legal Society v. Martinez, 561 U.S. 661 (2010),
the Supreme Court explained that the proper framework for
assessing restrictions in limited public forums is to
determine whether they are (1) reasonable, and (2) do not
“discriminate against speech on the basis of … viewpoint.”
Id. at 685 (emphasis added); see Reed, 576 U.S. at 169
(distinguishing between content and viewpoint discrimination).
Pursuant to that framework, the Court held that the all-comers
policy in that case was not only viewpoint-neutral, but “textbook
viewpoint neutral.” Martinez, 561 U.S. at 695. And, as the
majority acknowledges, the all-comers policy here is “modeled
after the version upheld by the Supreme Court in Martinez.”1
To the extent the majority believes that Martinez is no
longer good law, it should say so outright. Since I am
unaware of any opinions of the Supreme Court overruling
Martinez, I respectfully dissent. See Agostini v. Felton, 521
U.S. 203, 237 (1997) (explaining that only the Supreme
Court may “overrule[] its own decisions”)
1
In discussing plaintiffs’ free exercise (as opposed to speech) claims, the
majority suggests that “the stipulated facts in Martinez providing for an
exceptionless policy are critically distinct from the discretion the District
retains when applying the non-discrimination policies in this case.” But
the “discretion” the majority refers to does not appear on the face of the
all-comers policy, which policy is almost identical to the one stipulated
to by the parties in Martinez. Instead, the discretion is derived from the
District’s actual enforcement of the policy vis-à-vis its other policies,
which would only be relevant to an as-applied challenge.
98 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
SUNG, Circuit Judge, concurring in part and dissenting in
part:
I agree with the majority that Pioneer FCA has
representational standing, but for different reasons. I agree
with Chief Judge Murguia that the declarations Plaintiffs
submitted in support of their motion for injunctive relief,
alone, are too sparse to establish standing. However, I agree
with the majority that we may grant Plaintiffs’ motion to
supplement the record on standing, because we did so under
similar circumstances in Teamsters Local Union No. 117 v.
Washington Dep’t of Corrections, 789 F.3d 979, 985-86 (9th
Cir. 2015). Therefore, I concur in the grant of Plaintiffs’
motion, Dkt. No. 98. Further, I find that “the record as
supplemented on appeal reflects the bare minimum
necessary to satisfy the threshold requirement of standing.”
Id.I conclude, however, that FCA National does not have
direct organizational standing to pursue prospective
injunctive relief, for the reasons stated by Chief Judge
Murguia in her dissent.
Because I conclude that Pioneer FCA has
representational standing, I reach the merits of the district
court’s preliminary injunction decision. On the merits, I
conclude that the district court did not abuse its discretion in
refusing to enjoin the San José Unified School District from
uniformly applying its nondiscrimination policy to student
groups in the then-upcoming school year, for the reasons
stated by Chief Judge Murguia in her dissent.
I agree with Chief Judge Murguia’s rigorous analysis of
the record and law in Parts I, II.B, II.C.2, III.A, and III.B of
her dissent, and I join those parts in full. I also largely agree
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 99
with Chief Judge Murguia’s analysis of Pioneer FCA’s
representational standing in Part II.C.1 of her dissent, but I
do not join that part for the reasons stated above. I also share
Chief Judge Murguia’s concerns about the majority’s
decision, as expressed in Part IV of her dissent, and I join
that part except for the last sentence regarding jurisdiction. I
also agree with and join Part II of Judge M. Smith’s partial
concurrence and partial dissent.
MURGUIA, Chief Circuit Judge, dissenting, with whom
Circuit Judge SUNG joins with respect to Parts I, II.B,
II.C.2, III.A, III.B, and IV (except for the last sentence):
This case presents challenging constitutional questions
of a significant nature. But this appeal requires us only to
decide a narrow issue with respect to those questions:
whether the district court abused its discretion in refusing to
enjoin the San José Unified School District from uniformly
applying its nondiscrimination policy to student groups in
the then-upcoming school year. Rather than properly
considering that issue, the majority hands down a sweeping
opinion with no defined limiting principle that ignores our
standard of review and carte-blanche adopts Plaintiffs’
version of disputed facts.
But even before resolving the limited appeal before us,
we must have jurisdiction to do so. We do not. I would
dismiss this appeal because Plaintiffs fail to make the
necessary “clear showing” of Article III standing. The
majority concludes otherwise only by ignoring unambiguous
Ninth Circuit and Supreme Court precedent. I respectfully
dissent.
100 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
I.
I begin by highlighting that the majority overlooks our
standard of review and procedural posture. We review the
denial of a preliminary injunction for an abuse of discretion.
Olson v. California, 62 F.4th 1206, 1218 (9th Cir. 2023). In
so doing, we review the district court’s findings of fact for
clear error. All. for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011). A factual finding is clearly
erroneous when it is “illogical, implausible, or without
support in inferences that may be drawn from the facts in the
record.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012)
(quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th
Cir. 2009) (en banc)). And, notably, our review of a district
court’s denial of a preliminary injunction is “limited and
deferential.” Sw. Voter Registration Educ. Project v.
Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc); Big
Country Foods, Inc. v. Bd. of Educ. of Anchorage Sch. Dist.,
868 F.2d 1085, 1087–88 (9th Cir. 1989) (emphasizing the
“very limited” scope of our review of the denial of a
preliminary injunction). In reviewing the district court’s
preliminary-injunction decision, we “will not reverse the
district court’s order simply because we would have reached
a different result. . . . [We are] not empowered to substitute
[our] judgment for that of the [district court].” Zepeda v.
I.N.S., 753 F.2d 719, 725 (9th Cir. 1983). The majority pays
only lip service to these standards, reciting them but not
applying them, the consequences of which I discuss below.
A.
The Fellowship of Christian Athletes (FCA) is an
international religious ministry with thousands of student
chapters at middle schools, high schools, and colleges across
the United States. FCA’s stated mission is “to lead every
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 101
coach and athlete into a growing relationship with Jesus
Christ and His church.” To become a recognized student
leader of an FCA student chapter, a student must
affirmatively state their agreement with a “Statement of
Faith” and must agree to abide by and conform their conduct
to a “Sexual Purity Statement.” Under these Statements,
prospective FCA student leaders must agree that sexual
intimacy should only occur between a man and a woman
within the confines of a heterosexual marriage.1
Specifically, the Statement of Faith reads in relevant
part:
We believe God’s design for sexual intimacy
is to be expressed only within the context of
1
For good reason, the Supreme Court has
declined to distinguish between status and conduct in
[contexts where individuals are excluded “on the basis
of a conjunction of conduct and the belief that the
conduct is not wrong.”] See Lawrence v. Texas, 539
U.S. 558, 575 (2003) (“When homosexual conduct is
made criminal by the law of the State, that declaration
in and of itself is an invitation to subject homosexual
persons to discrimination.” (emphasis added)); id., at
583 (O’Connor, J., concurring in judgment) (“While it
is true that the law applies only to conduct, the conduct
targeted by this law is conduct that is closely
correlated with being homosexual. Under such
circumstances, [the] law is targeted at more than
conduct. It is instead directed toward gay persons as a
class.”); cf. Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing
yarmulkes is a tax on Jews.”).
Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll.
of the L. v. Martinez, 561 U.S. 661, 689 (2010) (alteration in original).
102 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
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.
And the Sexual Purity Statement states:
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.2
2
The version of the Sexual Purity Statement first brought to Defendants’
attention in the spring of 2019 read:
God desires his children to lead pure lives of holiness.
The 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.
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B.
Every fall, student clubs at high schools across the San
José Unified School District apply for Associated Student
Body (ASB) recognition. The ASB program enhances
students’ sense of belonging and school spirit, creates a
forum for students to gather around shared interests, and
promotes self-governance. ASB-recognized student clubs
receive certain benefits, like inclusion in the school
yearbook; access to an ASB financial account, where the
club can deposit and withdraw funds; an official campus
advisor; and priority access to campus meeting space. ASB
clubs do not receive school funding. Students must apply
for ASB recognition on behalf of the prospective club.
Starting in the early 2000s, and until the spring of 2019,
three of the District’s six high schools—Willow Glen,
Leland, and Pioneer—had ASB-recognized FCA student
chapters. During that time, the District was unaware that
FCA restricted leadership by requiring student leaders to
affirm the Statement of Faith and Sexual Purity Statement.
In April 2019, three Pioneer students complained to
Pioneer staff about FCA’s student leadership requirements.
After a Pioneer teacher alerted Principal Herb Espiritu to the
complaints, Principal Espiritu contacted the District for
guidance. The District determined that FCA’s leadership
restrictions violated the District’s nondiscrimination
policies, which require District activities and programs to be
free from discrimination based on, among other things,
104 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
religion and sexual orientation.3 As a result, the District
advised that FCA clubs were ineligible for ASB recognition.
At Pioneer, Principal Espiritu informed FCA’s student
leaders that FCA could no longer operate as an ASB club
3
One relevant part of the District’s nondiscrimination policy (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
religion, 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.
Another section of the District’s policy (Board Policy 5145.3) 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
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,
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. SAN JOSE USD 105
because the District’s nondiscrimination policy forbade
“sponsor[ing] programs or activities with discriminatory
practices.” FCA was therefore not recognized as an ASB
student club for the remainder of the 2018–19 school year or
for the 2019–20 school year.
The District allowed FCA student chapters to operate as
“student interest groups” even without ASB recognition.
Student interest groups can advertise and meet at school,
participate in club rush and school events, and use the
auditorium for club meetings and activities.
During the 2020–21 school year, due to the COVID-19
pandemic, Pioneer granted provisional ASB approval to all
student clubs, including Pioneer FCA. Pioneer FCA was the
only FCA student chapter in the District that operated during
the 2020–21 school year; the chapters at the two other
District schools (Willow Glen and Leland) had dissolved.
The Pioneer students who led Pioneer FCA in the 2020–21
school year graduated in 2021.
As the 2021–22 school year approached, the District
created a new application process for prospective ASB
clubs, featuring an “All-Comers Policy” that requires all
clubs “to permit any student to become a member or leader.”
In conjunction with this new ASB-approval process, the
District issued guidelines and trained its activities directors
on the process. Under the new process, any club seeking
ASB recognition must complete and sign an “ASB
Affirmation Form,” which includes confirming the club’s
conformance with the District’s nondiscrimination policies.
The club must affirm that it will “[a]llow any currently
enrolled student at 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.” The
106 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
form allows the adoption of “non-discriminatory criteria”
regarding being a member or leader, such as “regular
attendance” and “participation” in events and activities.
District guidance explained that the ASB Affirmation Form
is to be “implemented and construed in accordance” with the
Supreme Court’s decision in Christian Legal Society v.
Martinez, 561 U.S. 661 (2010), which upheld the
constitutionality of a similar all-comers policy. All ASB-
approved clubs were also required to adopt constitutions
prohibiting discrimination in club membership and
leadership.
Consistent with this new approval process, any student
club that signed the affirmation form and adopted a requisite
constitution was granted ASB recognition in the 2021–22
school year. Likewise, the District clarified that any club
that followed this process would be approved for the 2022–
23 school year.
No FCA student applied for ASB recognition at any
District school during the 2021–22 school year. And Pioneer
FCA declined an invitation to host a table at Pioneer’s club
rush in the fall of 2021.
C.
In April 2020—before Pioneer provisionally recognized
all student groups for the 2020–21 school year—Plaintiffs
FCA National and two Pioneer seniors, Charlotte Klarke and
Elizabeth Sinclair, sued the District and several District
officials, seeking injunctive relief, declaratory relief, and
damages. Soon after, they filed an amended complaint,
bringing constitutional claims primarily under the First
Amendment, and a statutory claim under the Equal Access
Act. Defendants moved to dismiss. The district court
granted the motion in part, dismissing with prejudice Klarke
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 107
and Sinclair’s claims for prospective relief because those
claims became moot when the students graduated in June
2020. See Roe v. San Jose Unified Sch. Dist. Bd., No. 20-
CV-02798-LHK, 2021 WL 292035, at *19 (N.D. Cal. Jan.
28, 2021). Klarke and Sinclair’s claims for retrospective
damages stemming from alleged past violations of their
rights remain pending. Id. The district court also concluded
that FCA National failed to allege its own organizational or
associational standing and dismissed its claims without
prejudice. Finally, the district court dismissed with
prejudice Plaintiffs’ facial challenges to the District’s
policies. Id.Plaintiffs filed the operative complaint in July 2021,
adding Pioneer FCA as a plaintiff. Plaintiffs soon moved for
a preliminary injunction, in which they sought an order
requiring the District to recognize Pioneer FCA as an ASB
student group. In support of their motion for preliminary
injunction, Plaintiffs submitted six declarations between
July 2021 and May 2022 from FCA National employee
Rigoberto Lopez. Defendants again moved to dismiss,
arguing that FCA National and Pioneer FCA lacked Article
III standing for the requested prospective injunctive relief.
The district court failed to rule on that motion.
During discovery, Defendants 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 students in
connection with any motion in the case.
The district court denied the preliminary-injunction
motion in June 2022. See Fellowship of Christian Athletes
v. San Jose Unified Sch. Dist. Bd. of Educ., No. 20-CV-
108 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
02798-HSG, 2022 WL 1786574, at *1 (N.D. Cal. June 1,
2022). In its order, the district court made specific factual
findings that the District did not selectively enforce the All-
Comers Policy and that the District did not have any
discretion to allow student clubs to discriminate. See id. at
*9–12. Plaintiffs timely appealed the denial of the
preliminary injunction.
On appeal, Defendants again argued that Plaintiffs
lacked Article III standing for injunctive relief. They
asserted that Plaintiffs failed to show that any District
student intended to seek ASB recognition for an FCA club
for the coming school year or would seek recognition if the
District’s Policy were enjoined. Defendants thus contended
that Plaintiffs were not likely to suffer any future harm, a
necessary requisite of standing at the preliminary-injunction
stage.
In August 2022, a three-judge panel of our Court heard
oral argument. Less than two weeks later, Plaintiffs filed a
Federal Rule of Appellate Procedure 28(j) letter seeking to
insert new evidence into the record. Specifically, they
requested to submit evidence that two Pioneer students—
N.M. and B.C.—were interested in applying for ASB
recognition of an FCA club for the then-upcoming 2022–23
school year. In a written order, the panel unanimously
refused to consider this “eleventh-hour filing.”4
4
In rejecting Plaintiffs’ request, the panel quoted then-Judge Gorsuch’s
opinion in Niemi v. Lasshofer, 728 F.3d 1252, 1262 (10th Cir. 2013)
(Gorsuch, J.):
Allowing a party to convert [Rule 28(j)] to an entirely
new and different purpose—allowing Rule 28(j)
letters to be used to introduce any sort of new issue
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 109
That same day, the same panel reversed the district
court’s denial of the preliminary injunction in a divided
decision. Fellowship of Christian Athletes v. San Jose
Unified Sch. Dist. Bd. of Educ., 46 F.4th 1075 (9th Cir.
2022), vacated by 59 F.4th 997 (9th Cir. 2023). The panel
majority concluded that both FCA National and Pioneer
FCA had standing for prospective relief. 46 F.4th at 1088–
91. On the merits, the majority concluded that Plaintiffs
were likely to succeed on their selective-enforcement free-
exercise claims and that the remaining preliminary-
injunction factors supported granting the requested
injunctive relief. Id. at 1092–99. The majority directed the
district court to enter an injunction that ordered the District
to grant ASB recognition to FCA student groups. Id. at
1099.
The panel dissent concluded that Plaintiffs could not
establish Article III standing for prospective relief and, as a
result, the appeal should be dismissed for lack of
jurisdiction. Id. at 1103 (Christen, J., dissenting). The
dissent explained:
Because the District’s nondiscrimination
policy cannot cause a real or immediately
after briefing is complete—risks leaving opponents
with no opportunity (at least if they abide the rules of
appellate procedure) for a proper response; it risks an
improvident opinion from this court by tasking us with
the job of issuing an opinion without the full benefits
of the adversarial process; and it invites an unsavory
degree of tactical sandbagging by litigants in future
cases: why bother pursuing a potentially winning issue
at the outset when you can wait to introduce it at the
last second and leave your opponent without the
chance to respond?
110 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
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.
Id.
Defendants petitioned for rehearing en banc. While their
petition was pending, Plaintiffs again sought to introduce
new evidence, this time by moving to supplement the record
on appeal. The proffered evidence allegedly showed that
after the three-judge panel’s decision, N.M. and B.C.
submitted a student-club application for Pioneer FCA, and
the District then reinstated Pioneer FCA’s ASB status for
one year.5 Plaintiffs claimed that this evidence confirmed
that Plaintiffs’ claims were “not moot” because it showed
that Pioneer FCA exists and needs permanent injunctive
relief.
A majority of active members of this Court then voted to
rehear the case en banc, so the panel opinion was vacated.
59 F.4th at 998. After we heard oral argument in March
2023, a majority of the en banc court voted to issue an
injunction—similar to the one the three-judge panel had
5
Plaintiffs’ motion to supplement prompted a volley of responses and
replies. Going into en banc oral argument, there were three pending
motions to supplement the record on appeal, two from Plaintiffs and one
from Defendants. Defendants cross-moved for leave to supplement the
record with evidence that “while two students signed a club application,
they were not, and are not, actually committed to organizing a club.”
Defendants also asked to supplement the record with evidence related to
the merits. Plaintiffs opposed the cross-motion and moved to
supplement the record with additional jurisdictional evidence.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 111
instructed the district court to issue—pending resolution of
the appeal. Fellowship of Christian Athletes v. San Jose
Unified Sch. Dist. Bd. of Educ., 64 F.4th 1024, 1025 (9th Cir.
2023) (en banc). I dissented from that order. Id. (Murguia,
C.J., dissenting).
II.
Before reaching the merits of the district court’s
preliminary-injunction decision, we must assure ourselves
that Plaintiffs have standing and that jurisdiction otherwise
exists. LA All. for Hum. Rts. v. County of Los Angeles, 14
F.4th 947, 956 (9th Cir. 2021). So, like the majority, I begin
by addressing whether Plaintiffs meet the “irreducible
constitutional minimum” of Article III standing. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992). Unlike the
majority, to make this determination, I would act in
accordance with our regular practice and precedent and
consider only the record that existed before the district court.
See Lowry v. Barnhart, 329 F.3d 1019, 1024–25 (9th Cir.
2003) (“Save in unusual circumstances, we consider only the
district court record on appeal.”).
Based on the record before the district court, Plaintiffs
lack standing for prospective injunctive relief. Plaintiffs do
not establish that any District student intended to apply for
ASB recognition for an FCA club during the then-upcoming
2022–23 school year, or would have done so if the District’s
Policy were enjoined. Without that evidence, Plaintiffs
cannot show injury in fact and so they do not meet their
standing burden. I would dismiss the appeal for lack of
jurisdiction.
112 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
A.
As a preliminary matter, I would deny all pending
motions to supplement the record on appeal. After the three-
judge panel reversed the district court and while Defendants’
petition for rehearing en banc was pending, Plaintiffs moved
to supplement the record on appeal with evidence
purportedly related to our jurisdiction.6 Specifically,
Plaintiffs’ motion proffered extra-record evidence allegedly
showing that N.M. and B.C. applied for ASB recognition for
a Pioneer FCA club for the 2022–23 school year.
But “[o]nly in extraordinary situations should the record
on appeal be supplemented with material that was not before
the district court.” Barilla v. Ervin, 886 F.2d 1514, 1521 n.7
(9th Cir. 1989); IMDb.com Inc. v. Becerra, 962 F.3d 1111,
1126 n.7 (9th Cir. 2020) (rejecting attempt to insert into the
record a statement submitted to our Court “for the first time
during the pendency of the appeal” because “[d]ocuments or
facts not presented to the district court are not part of the
record on appeal” (citation omitted)); Fed. R. App. P. 10(a)
(explaining that the record on appeal consists of “papers and
exhibits filed in the district court,” “the transcript of
proceedings,” and “docket entries”). We have stressed that
“[t]his limitation is fundamental.” Lowry, 329 F.3d at 1024.
That said, there are rare “exceptions to [this] general rule,”
including that we may supplement the record on appeal
where “developments [might] render a controversy moot and
thus divest us of jurisdiction.” Id.6
This was Plaintiffs’ second attempt to introduce extra-record evidence,
the first being the post-panel-argument Rule 28(j) letter that the three-
judge panel unanimously rejected.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 113
Here, Plaintiffs argue that supplementation of the record
is permitted because the proffered evidence shows that
Plaintiffs’ claims are not moot. Plaintiffs are confused. As
Defendants argue and both the three-judge panel majority
and dissent recognized, the relevant justiciability issue here
is standing, not mootness. Plaintiffs’ cited authority on
mootness therefore has no application here.
“A case is moot when the issues presented are no longer
live or the parties lack a legally cognizable interest in the
outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287
(2000) (cleaned up). But a plaintiff must have established
Article III standing in the first place for a case to remain a
live controversy (and thus not moot). See Friends of the
Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 174 (2000) (warning courts not to incorrectly conflate
standing and mootness and emphasizing a court’s
“obligation to assure” that the plaintiffs “had Article III
standing” even where the case was not moot); cf. id. at 191
(“Standing admits of no . . . exception; if a plaintiff lacks
standing at the time the action commences, . . . the
complainant [is not entitled] to a federal judicial forum.”).
And here, as I discuss in detail below, Plaintiffs fail to
make the mandatory threshold showing of standing. The
majority grants Plaintiffs’ motion to supplement only by
accepting Plaintiffs’ flawed mootness invitation. Viewing
the jurisdictional issue as what it is—a question of
standing—the majority’s decision to supplement the record
cannot withstand scrutiny. See W. Watersheds Project v.
Kraayenbrink, 632 F.3d 472, 483 n.6 (9th Cir. 2011)
(emphasizing that standing “cannot be created
114 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
retroactively”).7 Because our precedent does not allow a
party to supplement the record in these circumstances or to
devise standing on appeal with extra-record evidence, I
would deny the motions to supplement.
B.
To establish Article III standing, a plaintiff bears the
burden of showing that (1) it “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. UPS, 511 F.3d 974, 985 (9th Cir. 2007)
(quoting Lujan, 504 U.S. at 560–61). Because standing is
“an indispensable part” of the plaintiff’s case, each element
“must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at the successive
stages of the litigation.” Lujan, 504 U.S. at 561.
At the preliminary-injunction stage, the plaintiff must
make a “clear showing” of each of these elements. Townley
v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013). To do so, the
plaintiff “may rely on the allegations in their Complaint and
whatever other evidence they submitted in support of their
[preliminary-injunction] motion.” City & Cnty. of San
Francisco v. U.S. Citizenship & Immigr. Servs., 944 F.3d
7
Teamsters Local Union No. 117 v. Washington Department of
Corrections, 789 F.3d 979 (9th Cir. 2015), does not help Plaintiffs here.
In that summary-judgment appeal, our Court considered supplemental
affidavits about a longstanding, six-year-old policy that the district court
had considered in “multiple proceedings.” 789 F.3d at 986. In contrast,
Plaintiffs’ proffered declarations concern new events that occurred after
the district court denied the motion for injunctive relief.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 115
773, 787 (9th Cir. 2019) (quoting Washington v. Trump, 847
F.3d 1151, 1159 (9th Cir. 2017) (per curiam)).
When a plaintiff seeks prospective injunctive relief, it
cannot rely solely on past injury and instead must
demonstrate “a sufficient likelihood that [it] will again be
wronged in a similar way” and a “real and immediate threat
of repeated injury.” Bates, 511 F.3d at 985 (first quoting
City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983); and
then quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)).
The Supreme Court has explained that “past wrongs do not
in themselves amount to [a] real and immediate threat of
injury,” unless accompanied by “continuing, present adverse
effects.” Lyons, 461 U.S. at 102–03 (citation omitted).8
“Threatened injury must be certainly impending to constitute
injury in fact,” and “allegations of possible future injury are
not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398,
409 (2013) (cleaned up).
C.
Plaintiffs assert two theories of Article III standing: that
Pioneer FCA has representational standing and that FCA
National has direct organizational standing. Under
representational standing, an organization may bring suit on
behalf of its members based on injuries to its members,
whether or not the organization itself has suffered an injury.
Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100,
1105 (9th Cir. 2006). Under direct organizational standing,
an organization may bring suit in its own right to challenge
an action that causes it direct injury. E. Bay Sanctuary
8
Past injuries are redressed by damages, and Plaintiffs’ damages claims
remain pending irrespective of any prospective remedy granted today.
See Roe, 2021 WL 292035, at *19.
116 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
Covenant v. Biden, 993 F.3d 640, 663 (9th Cir. 2021).
Confined to the proper record on appeal—the record before
the district court, neither Pioneer FCA nor FCA National has
standing for the prospective injunctive relief they request
here.
1.
Under the representational standing doctrine, Pioneer
FCA has standing to bring suit on behalf of its 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., 471 F.3d at 1105–06. The parties dispute
only whether the first prong is met.
For a Pioneer FCA member to have standing for
prospective relief in his own right, he needs to suffer the
threat of a sufficiently concrete and imminent future injury.
ASB clubs are comprised only of students, and only students
may apply for ASB recognition. So, if Plaintiffs fail to
establish that any Pioneer FCA student intended to apply for
ASB recognition for the 2022–23 school year or would have
applied in the absence of the District’s Policy, they cannot
clearly show a prospective injury.
Plaintiffs seeking injunctive relief must make a “clear
showing” of imminent future injury through detailed and
specific evidence. Townley, 722 F.3d at 1133 (citing Lujan,
504 U.S. at 561). That demand has teeth; the Supreme Court
has regularly dismissed appeals because plaintiffs failed to
meet their burden. See, e.g., Lujan, 504 U.S. at 565
(concluding that affidavits reflecting plaintiff-organization
members’ “inten[t]” to engage in activity that would be
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 117
affected by the defendant’s action were “simply not enough”
for Article III standing because “‘some day’ intentions . . .
do not support a finding of . . . ‘actual or imminent’ injury”);
Sierra Club v. Morton, 405 U.S. 727, 735 (1972) (holding
that plaintiff-organization did not establish Article III
standing for injunctive relief where the organization failed
to show that its members would be affected by the actions it
sought to enjoin); Summers v. Earth Island Inst., 555 U.S.
488, 496 (2009) (rejecting plaintiffs’ claim of Article III
standing because the affidavits failed to establish “firm
intention” that plaintiff-organization’s member would return
to location affected by challenged government action;
finding “vague desire” insufficient to satisfy the requirement
of imminent injury).
We, too, have concluded that the lack of a concrete plan
or firm intention makes a plaintiff’s claim of injury too
speculative for Article III standing. See, e.g., Wilderness
Soc., Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010)
(rejecting as insufficient to support standing a declaration
that did not establish member’s “concrete plans” to return to
affected location); Lopez v. Candaele, 630 F.3d 775, 787
(9th Cir. 2010) (no Article III standing for prospective relief
where plaintiff failed to articulate, with sufficient detail, his
concrete plans or intent to violate government action);
Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134,
1139 (9th Cir. 2000) (explaining that a “general intent” to
take a future action “does not rise to the level of an
articulated, concrete plan” and that for plaintiffs to establish
Article III standing for prospective relief, they must specify
“when, . . . where, or under what circumstances”). A recent
case of ours, Yazzie v. Hobbs, is particularly instructive in
this regard. 977 F.3d 964 (9th Cir. 2020) (per curiam).
There, we affirmed the denial of a preliminary injunction
118 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
involving a vote-by-mail deadline. Id. at 969. The
complaint alleged that the plaintiffs faced myriad challenges
to voting by mail. Id. at 965. But because none of the
plaintiffs established an intent to vote by mail in the
upcoming election, we concluded that the plaintiffs lacked
Article III standing. Id. at 966. The plaintiffs’ “general”
allegations and intent did not constitute concrete and
particularized injury and instead “epitomize[d] speculative
injury.” Id. at 967 (quoting Townley, 722 F.3d at 1133).
Applying this precedent, Pioneer FCA cannot meet its
burden here. No District students sought ASB recognition
for an FCA club for the 2021–22 school year. And Plaintiffs
fail to adequately show that any student firmly intended or
had concrete plans to apply for ASB recognition in the 2022–
23 school year or that any would have applied in the absence
of the District’s Policy. See id. (“What is missing for [the
plaintiffs] is any allegation or showing as to, at a bare
minimum, whether any of the plaintiffs intend to” engage in
conduct covered by the injunction that plaintiffs seek.). This
dooms Pioneer FCA’s standing for prospective relief.
Plaintiffs’ standing argument rests on declarations that
Plaintiffs submitted in support of their motion for injunctive
relief. Plaintiffs assert that these declarations, all from FCA
National employee Rigoberto Lopez, sufficiently
demonstrate that two Pioneer students—N.M. and B.C.—
intended to apply for ASB recognition during the 2022–23
school year. Plaintiffs are wrong. Lopez’s declarations fall
far short of establishing the necessary “clear showing” of a
concrete and particularized injury.
The declarations do not state or otherwise clearly show
that N.M. or B.C. intended to apply for ASB recognition. In
the September 2021 declaration cited by the majority, Lopez
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 119
stated broadly that “Pioneer FCA’s leadership will apply for
ASB recognition” if an injunction were granted. Contrary to
the majority’s telling, this assertion was not related to N.M.
and does nothing to establish her intent to apply for ASB
recognition. At that point in September 2021, N.M. was not
a leader of Pioneer FCA, nor does the record indicate that
she had concrete plans to become one. The majority also
unpersuasively relies upon Lopez’s statements in a May
2022 declaration that N.M. and B.C. were confirmed as
Pioneer FCA’s leadership for the 2022–23 school year. But
that declaration does not mention, let alone detail, N.M. or
B.C.’s plans or desires to apply for ASB recognition.
According to the majority, the undetailed declarations
nonetheless make it “apparent” that at least one Pioneer FCA
student leader has standing to seek forward-looking relief.
Supreme Court precedent, and ours in turn, demands more.
The general and conclusory statements from Lopez are
insufficient to establish a student’s “concrete plans” or “firm
intentions” to apply for ASB recognition. Summers, 555
U.S. at 496.
There are additional reasons that Lopez’s declarations
cannot surmount Plaintiffs’ standing burden. To start, the
declarations are speculative hearsay. True, courts may
exercise discretion to consider hearsay in deciding whether
to issue a preliminary injunction. See Republic of the
Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988)
(en banc). But that discretion—stemming from the
“urgency” of obtaining a preliminary injunction, which may
“necessitate[] a prompt determination and make[] it difficult
to obtain affidavits from persons who would be competent
to testify at trial”—has no role to play here. Flynt Distrib.
Co. Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984).
120 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
There was no urgency in this case; indeed, neither
Plaintiffs nor the majority intimate as much. Plaintiffs’
motion for a preliminary injunction was pending before the
district court for ten months. See Fellowship of Christian
Athletes, 2022 WL 1786574, at *1. During that time,
Plaintiffs never presented any evidence from students
establishing their intent to apply for ASB recognition. The
majority brushes aside that reality as unimportant, reasoning
that the parties’ joint stipulation preventing testimony from
non-party students barred Plaintiffs from introducing such
evidence. This argument is lacking for two reasons.
First, Plaintiffs’ motion was pending for seven months
before the parties entered the joint stipulation about student
testimony. During that time, Plaintiffs could have supported
their motion with declarations or other evidence from non-
party students. But they did not. Second, Plaintiffs cannot
skirt their burden to establish a jurisdictional requirement by
hiding behind a discovery stipulation. A discovery
stipulation cannot trump Article III of the Constitution. See
Virginia House of Delegates v. Bethune-Hill, 139 S. Ct.
1945, 1951 (2019) (“As a jurisdictional requirement,
standing to litigate cannot be waived or forfeited.”).
On top of this, there is reason to doubt the credibility of
the Lopez declarations. We have warned that at this stage of
litigation, courts should give inadmissible hearsay only the
weight to which it is entitled and consider it only when
“do[ing] so serves the purpose of preventing irreparable
harm before trial.” Flynt, 734 F.2d at 1394; 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”).
This appeal demonstrates why we put limited emphasis on
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 121
inadmissible evidence, as the record here reveals cracks in
Lopez’s statements. For example, when Lopez was deposed
in February 2022, he walked back and qualified statements
he made in the September and October 2021 declarations.
Notably, in the September 2021 declaration, he stated that
N.M. was “fearful” of seeking ASB recognition. Later,
during his deposition, Lopez clarified that it was he—not
N.M.—who had concerns about the ASB application. The
majority, however, unquestionably credits the veracity of the
declarations.
In sum, the record does not specifically show that a
Pioneer student intended to apply for ASB recognition in the
2022–23 school year or would apply in the absence of the
All-Comers Policy. And without that, Pioneer FCA has no
standing for prospective relief. See Lujan, 504 U.S. at 563
(no Article III standing where 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).9
2.
Plaintiffs’ alternative standing theory fares no better.
FCA National has direct organizational standing for
prospective relief only if Plaintiffs can demonstrate that the
District’s behavior will “frustrate[] [FCA National’s]
9
Citing Truth v. Kent School District, the majority also suggests that
Pioneer FCA may demonstrate imminent injury in this case on the basis
that the District had a written policy and Pioneer FCA’s injury stems
from that policy. See 542 F.3d 634, 642 (9th Cir. 2008), overruled on
other grounds by Los Angeles County v. Humphries, 562 U.S. 29 (2010).
But unlike Truth, Plaintiffs here fail to establish that any student would
apply for club recognition. The existence of a written policy therefore
cannot alone confer standing in this case.
122 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
mission and cause[] it to divert resources in response to that
frustration of purpose.” E. Bay Sanctuary Covenant, 993
F.3d at 663. They have not done so.
Plaintiffs’ direct organizational theory of standing fails
because Plaintiffs rely on allegations of past actions to
demonstrate that FCA National has standing to seek future
injunctive relief. For example, they allege that FCA
National diverted resources in response to the District’s
decision to derecognize FCA in 2019. The majority makes
a similar mistake, concluding that FCA National has
organizational standing because FCA National “has
diverted” staff time and energy and the District’s denial of
ASB recognition “has undoubtedly hampered” FCA
National’s ability to engage in its mission. While past
diversion of resources and past frustration of FCA National’s
mission may support standing for damages, they do not
support standing for prospective relief. See TransUnion
LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (“[S]tanding
is not dispensed in gross; rather, plaintiffs must demonstrate
standing for each claim that they press and for each form of
relief that they seek (for example, injunctive relief and
damages).”).
Plaintiffs cite no cases to support their argument that
they meet this theory of standing, and the cases invoked by
the majority are inapposite because they do not involve
injunctive relief. See Majority Opinion at 33–34 (citing
Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 879
(9th Cir. 2022) (motion-to-dismiss stage involving plaintiff
seeking damages); Pac. Shores Props., LLC v. City of
Newport Beach, 730 F.3d 1142, 1166 (9th Cir. 2013)
(summary-judgment stage in which organizations had
standing to seek damages for past harm after plaintiffs
voluntarily dismissed claims for injunctive relief); Fair
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 123
Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)
(default judgment for damages); Walker v. City of
Lakewood, 272 F.3d 1114, 1124 (9th Cir. 2001) (summary-
judgment stage involving plaintiff seeking damages)). The
question here is not whether a frustrated mission or diverted
resources can serve as a compensable injury (they can), but
rather whether FCA National has made a clear showing that
its resources will be diverted or its mission will be frustrated
going forward. The answer to that question—the only
question that matters—is “no.” This conclusion is bolstered
by the fact that Plaintiffs have not shown that any student
would have applied for ASB recognition in the first place.
That point undercuts any argument that FCA National will
“devote significant time and resources” to assist students—
there are no such students to assist.
***
Because neither Pioneer FCA nor FCA National have
Article III standing for forward-looking relief, I would
dismiss Plaintiffs’ appeal for lack of jurisdiction.
III.
Because I would dismiss this appeal, I would not reach
the merits. See Equity Lifestyle Props., Inc. v. County of San
Luis Obispo, 548 F.3d 1184, 1189 n.10 (9th Cir. 2008) (“The
jurisdictional question of standing precedes, and does not
require, analysis of the merits.”). But I write briefly further
to touch on several of the legal errors and factual
misrepresentations the majority makes on the merits.
A.
The majority holds that Plaintiffs are likely to succeed
on their free-exercise claims for three separate reasons. Not
only does the majority err in each of its free-exercise
124 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
analyses, but it improperly goes far beyond what is needed
to resolve this preliminary-injunction appeal. The sweeping
nature of the majority opinion flies in the face of judicial
restraint, particularly at this preliminary stage where the
record is underdeveloped. See, e.g., Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 450 (2008)
(holding that courts should neither “anticipate a question of
constitutional law in advance of the necessity of deciding it”
nor “formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied”)
(citation omitted); All. for the Wild Rockies, 632 F.3d at 1139(reversing denial of preliminary injunction on one claim
without reaching the merits of plaintiff’s other claims); cf.
Pearson v. Callahan, 555 U.S. 223, 234 (2009) (reiterating
that judicial restraint cautions courts to avoid reaching
constitutional questions when they are unnecessary to the
disposition of a case).10
1.
The majority’s first free-exercise error is that it
improperly expands the Supreme Court’s decision in Fulton
v. City of Philadelphia, 141 S. Ct. 1868 (2021). In Fulton,
the Supreme Court explained that a law is not generally
applicable, thus triggering strict scrutiny, if there is a “formal
mechanism for granting exceptions” that “‘invite[s]’ the
government to consider the particular reasons for a person’s
conduct” and whether they “are worthy of solicitude.” 141
10
On this point, I fully agree with Judge M. Smith’s statement in his
partial concurrence and partial dissent: “[T]he majority opinion sweeps
well beyond what is needed to resolve this case and imprudently
addresses open questions of law upon an underdeveloped, preliminary-
injunction record—even though doing so has no impact on the relief to
which the [majority concludes that] plaintiffs are entitled.”
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 125
S. Ct. at 1877, 1879 (quoting Emp. Div., Dep’t of Hum. Res.
of Oregon v. Smith, 494 U.S. 872, 884 (1990)). Here, the
All-Comers Policy provides that all clubs must allow all
students to participate “regardless of his or her status or
beliefs.” The Policy does not contain any written provision
allowing the District to grant exceptions to this blanket
nondiscrimination rule.
In this important regard, the Policy in this case is unlike
the policy in Fulton. In Fulton, the Supreme Court held that
the City of Philadelphia violated the Free Exercise Clause
when it refused to contract with Catholic Social Services
(CSS) unless CSS agreed to certify same-sex couples as
foster parents. Id. at 1874. But there, the City’s contract
with foster-care agencies included a written provision giving
a city official “sole discretion” to make exceptions to the
contract’s nondiscrimination rule. Id. at 1878–79. The
Court explained that “[t]he creation of a formal mechanism
for granting exceptions renders a policy not generally
applicable.” Id. at 1879. And because the sole-discretion
provision “‘invite[d]’ the government to decide which
reasons for not complying with the [nondiscrimination]
policy [were] worthy of solicitude,” it did not qualify as
generally applicable. Id. (quoting Smith, 494 U.S. at 884).
Fulton was a narrow ruling hinging on the City’s
“inclusion of a formal system” of discretionary exceptions.11
Id. at 1878. In fact, we have since recognized the decision’s
critical emphasis on an express grant of discretion, i.e., a
11
Justice Alito’s Fulton concurrence highlights the limited nature of the
Fulton majority’s holding. Justice Alito reasoned that to comply with
the ruling, the City could merely remove the contractual phrase
conferring discretionary power, i.e., the “formal” mechanism. Fulton,
141 S. Ct. at 1887 (Alito, J., concurring in the judgment).
126 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
formal mechanism. See Tingley v. Ferguson, 47 F.4th 1055,
1088 (9th Cir. 2022) (holding that a statute was generally
applicable in part because it lacked any provision providing
a formal discretionary mechanism for individual
exceptions).
Here, there is no formal mechanism for granting
exceptions to the All-Comers Policy. Indeed, no one asserts
that the All-Comers Policy expressly provides the District
with discretion to waive nondiscrimination requirements.
Instead, Plaintiffs and the majority focus on the District’s
alleged “exercise[]” of discretion. But nothing in Fulton
suggests that it applies to an informal practice untethered to
a formal mechanism. The majority’s Fulton analysis
operates from a faulty premise and is therefore
unpersuasive.12
2.
Next, the majority’s analysis of whether the District
treated any comparable secular group more favorably than
FCA is also flawed. See Tandon v. Newsom, 141 S. Ct. 1294,
1296 (2021) (explaining that a law is not generally
applicable if it treats comparable secular activity more
favorably than religious activity). The majority concludes
that the District triggered strict scrutiny under Tandon by
selectively enforcing its Policy only against FCA and not
other student groups. But the majority’s Tandon discussion
12
To the extent the majority asserts that the text of the Policy grants
impermissible discretion to the District because the Policy permits
student groups to restrict membership based on “non-discriminatory
criteria,” the majority is incorrect. On its face, the All-Comers Policy’s
non-discriminatory-criteria provision is plainly unlike the Fulton
provision, which formally gave discretion to discriminate.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 127
involves a misapprehension of the record and the district
court’s factual findings.
Specifically, the majority points to the Girls’ Circle, the
Big Sister/Little Sister Club, and the Senior Women’s Club
as examples of secular clubs that the District allowed to
discriminate. The district court, however, made specific
factual findings about each of these groups, finding “no[]
clear proof that the District allows” clubs to violate its Policy
or that the clubs actually do discriminate. See Fellowship of
Christian Athletes, 2022 WL 1786574, at *1.
The district court’s findings as to these groups are neither
illogical, implausible, nor without support in inferences that
may be drawn from the facts in the record. The district court
cited deposition testimony from Principal Espiritu that if a
male student wanted to join the Big Sister/Little Sister club,
the group would need “to be inclusive and consider it.” And
the district court found, based on record evidence, that the
Girls’ Circle was never an approved ASB student group. As
for the Senior Women’s Club, the district court recognized
that the club constitution simultaneously stated both that its
members are “students who are seniors who identify as
female” and also that “[a]ny currently enrolled student in the
School shall be eligible for membership.” Acknowledging
the arguable “tension” between these statements, the district
court found that the preliminary record did not establish that
the District allows discrimination in violation of the newly-
adopted All-Comers Policy. Both the record and our
caselaw support this finding. See Alpha Delta Chi-Delta
Chapter v. Reed, 648 F.3d 790, 803–04 (9th Cir. 2011) (no
selective enforcement where “groups were approved
inadvertently because of administrative oversight,” or where
“groups have, despite the language in their applications,
agreed to abide by the nondiscrimination policy”). Notably,
128 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
because Plaintiffs’ claims are for prospective relief, what
matters for this appeal is not the past application of earlier
ASB approval processes but instead the future application of
the All-Comers Policy.
3.
Finally, in determining that the Policy triggers strict
scrutiny because it is not neutral, the majority makes both
legal and factual errors. It is a basic and vital constitutional
principle that the government cannot act with animosity
toward religion. See Masterpiece Cakeshop, Ltd. v.
Colorado C.R. Comm’n, 138 S. Ct. 1719, 1732 (2018)
(explaining that a law is not neutral when the government
acts in a manner intolerant of religious beliefs); see also
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 532–33 (1993) (same). The majority’s
discussion on this issue overreads Supreme Court caselaw
and misapplies it to the facts here.13
Properly understood, Masterpiece Cakeshop, upon
which the majority relies, supports Defendants’ position, not
Plaintiffs’. 138 S. Ct. 1719. In Masterpiece Cakeshop, the
Supreme Court concluded that the Colorado Civil Rights
Commission violated a baker’s free-exercise rights by
conducting an adjudicatory proceeding infected with bias
13
As the majority acknowledges, the district court did not address
Plaintiffs’ religious-animus claim, so we have no relevant factual
findings to review. And the majority concedes that there is, at the least,
“some confusion” as to who had the “final say on derecognition.” Given
the majority’s concession that the record is at best murky, it begs the
question why the majority unnecessarily reaches Plaintiffs’ religious-
animus claim at all. See, e.g., All. for the Wild Rockies, 632 F.3d at 1139(reversing denial of preliminary injunction on one claim without
reaching the merits of plaintiff’s other claims).
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 129
against the baker’s religious beliefs. Id. at 1732. The
“elements of a clear and impermissible hostility” in
Masterpiece Cakeshop consisted of on-the-record
statements made by decision-makers at a formal, public
hearing without objection from other decision-makers. Id.
at 1729. The Court was careful to limit its holding to
contexts in which the decision-makers made hostile remarks
during the adjudication at issue. Id. at 1730 (distinguishing
between individual statements made by lawmakers and
comments made in the “very different context” of “an
adjudicatory body deciding a particular case”).
Our Court recently considered Masterpiece Cakeshop
when rejecting a plaintiff’s claim that a law penalizing the
practice of conversion therapy on minors violated the
plaintiff’s free-exercise rights. Tingley, 47 F.4th 1055. In
Tingley v. Ferguson, we recognized that the Supreme Court
in Masterpiece Cakeshop made a critical distinction between
“hostile comments made by an adjudicatory body when
deciding a case in front of it, and comments made by a
legislative body when debating a bill.” Id. at 1086. And we
concluded that the plaintiff had not established a free-
exercise violation in part because the allegedly hostile
comments “did not take place in an adjudicative context”
like the commission hearing in Masterpiece Cakeshop. Id.
at 1087.
Yet the majority today expands Masterpiece Cakeshop
far beyond the adjudicative context. In finding antireligious
animus in this case, the majority focuses on statements from
two teachers on Pioneer’s Climate Committee, likening the
Committee to the Civil Rights Commission in Masterpiece
Cakeshop. Frankly, the attempted comparison is odd. In all
significant respects, Pioneer’s Climate Committee—a group
of teachers and staff from one high school in the District—
130 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
is distinguishable from the Colorado Civil Rights
Commission—a formal adjudicatory body.
The Climate Committee, comprised of Pioneer teachers
and staff who “address how the school functions in terms of
its . . . emotional and psychological climate,” is not a
decision-making body.14 The Climate Committee lacks
independent authority to make decisions, and critically, it
had no role over the ASB recognition or derecognition of
student clubs, including FCA. Nor did the individual
teachers and staff on the Climate Committee hold relevant
decision-making authority.
The record instead supports a finding that the decision to
derecognize FCA at District schools came from District
officials. The majority implicitly recognizes this but argues
that without the Climate Committee, “there is no indication
that any other group or administrative body within the
District would have . . . ultimately called for [FCA’s]
derecognition.” The theory, apparently, is that the Climate
Committee made an animus-ridden recommendation to the
District that the District then ratified. But neither Plaintiffs
nor the majority identify any evidence of the Climate
Committee’s involvement in determining or advising on
FCA’s ASB status.
The majority first refers to a Climate Committee meeting
in which Committee members expressed their opinions that
FCA’s Statement of Faith went against the school’s core
values. But no one asserts that that meeting determined or
recommended derecognition, and there is no evidence that
14
The majority wrongly implies that the Climate Committee was made
up of District employees and staff from schools other than Pioneer. To
the contrary, the Climate Committee consisted only of Pioneer staff.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 131
the District decision-makers even knew of the Climate
Committee’s existence, let alone of the content of the
Committee’s discussions.
The majority next cites scattered comments from two
teachers on the Climate Committee that were made in
contexts other than Committee meetings. Far from
“[p]ublic, on-the-record comments” by an adjudicatory
body, however, isolated statements by individual teachers
are closer to “stray comments from [state] legislators
speaking for themselves,” which do not give rise to a free-
exercise violation. Id. at 1086–87. It is factually and legally
inappropriate in this case to impute comments of individual
teachers onto the District. Doing so risks making a school
district responsible for the words of each of its teachers and
staff. That conclusion would be untenable for school
districts, which often consist of hundreds, if not thousands,
of teachers. See Brief for California School Boards
Association and its Education Legal Alliance as Amicus
Curiae in Support of Petition for Rehearing or Rehearing En
Banc, Dkt. No. 94, at 13 & n.5.
The majority also improperly attempts to empower the
Climate Committee by asserting that the Committee
influenced Principal Espiritu, who the majority suggests was
really the ultimate decision-maker.15 It is by no means clear,
15
In any event, Plaintiffs misapprehend the record with respect to
Principal Espiritu’s statements. And the majority adopts Plaintiffs’
misapprehensions. For example, Plaintiffs assert that Principal Espiritu
said that FCA’s religious beliefs were “of a discriminatory nature.” Not
true. Principal Espiritu actually said that FCA’s “pledge is of a
discriminatory nature.” Another example: Plaintiffs assert that Principal
“Espiritu himself admitted that the mere existence of FCA’s religious
beliefs was sufficient in his mind to deny FCA recognition.” Again, not
132 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
based on this record, that Principal Espiritu had the final say
on FCA’s recognition status. After receiving complaints
about FCA’s leadership requirements, Principal Espiritu
consulted District officials for guidance on whether the
requirements violated the District’s nondiscrimination
policy. In response, the District explained that all ASB clubs
needed to accept students in a manner consistent with the
District’s policies. The District further instructed Principal
Espiritu to derecognize any club that violated the District’s
nondiscrimination policy and informed Principal Espiritu
that a club that barred from leadership any students who
engaged in “homosexual activity” fell in this category. The
District specifically communicated to Principal Espiritu that
FCA’s leadership requirements impermissibly discriminated
based on sexual orientation and instructed Pioneer to
derecognize FCA. Principal Espiritu apparently then acted
in accordance with this guidance. Indeed, the majority
recognizes as much when discussing the factual background
of the case, explaining that it was the District who “decided
to strip [FCA] of its ASB approval.”
All that to say, the majority transforms the Climate
Committee into an adjudicatory body akin to the Colorado
Civil Rights Commission when, by all accounts, it was not
one. Given that the Committee was merely a group of
teachers and staff lacking decision-making authority,
Plaintiffs’ claim of animus collapses.
B.
The majority’s merits errors do not end with Plaintiffs’
free-exercise claims; I join Part II of Judge M. Smith’s
true. Principal Espiritu testified that the existence of the Sexual Purity
Statement may have been sufficient to violate the discrimination policy.
FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD 133
partial dissent and partial concurrence in which he dissents
from the majority’s holding that Plaintiffs are likely to
succeed on their free-speech claim. I agree with Judge M.
Smith that to reach this conclusion, the majority wrongly and
unnecessarily overrules our free-speech precedent, Alpha
Delta, 648 F.3d at 801, and ignores binding Supreme Court
precedent, Martinez, 561 U.S. at 695.
IV.
From top to bottom, the majority bypasses the “limited
and deferential” review we must give a district court’s denial
of a preliminary injunction. Sw. Voter Registration Educ.
Project, 344 F.3d at 918. The result is an expansive opinion
focused on past harms and based only in one party’s telling
of a complex, disputed, and underdeveloped record. And
the majority sets forth no limiting principle to the
permission it gives to school clubs to exclude students
based on any number of protected classes. Under the
majority’s decision, for example, are all religious student
clubs exempt from a uniformly applied nondiscrimination
policy? Would a public secondary school be forced to
officially recognize a religious student club that required its
members or leaders to adhere to racist, sexist, or xenophobic
beliefs, or excluded students based on their race or gender?
See 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2342
(2023) (Sotomayor, J., dissenting) (“How quickly we forget
that opposition to interracial marriage was often because
“‘Almighty God . . . did not intend for the races to mix.’”
(quoting Loving v. Virginia, 388 U.S. 1, 3 (1967))). The
majority goes out of its way to open doors without any
consideration to or discussion of what is behind them.
134 FELLOWSHIP OF CHRISTIAN ATHLETES V. SAN JOSE USD
And unfortunately, to reach this sweeping result, the
majority waters down Article III, ignoring controlling
precedent that demands a “clear showing” of standing at this
preliminary procedural posture. Because we lack
jurisdiction over this appeal, I respectfully dissent.