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  • Robert Lusk

Civil Rights v. Religious Liberty


The extension of civil rights to include gender-related issues inevitably generates conflict between those who identify as or support the LGBTQ+ community and certain religious groups, including Christian groups. The Ninth Circuit’s decision in Fellowship of Christian Athletes v. San Jose Unified School District, Case No. 22-15827, (August 29, 2022) is an example of how these conflicts play out in the public-school context.


The facts, as summarized by the Court, were that the Fellowship of Christian Athletes (FCA) required students serving in leadership roles to abide by a Statement of Faith that included the belief that sexual relations should be limited within the context of a marriage between a man and a woman. Students who didn’t ascribe to FCA’s Statement of Faith could be members, but not leaders. The school district had an Associated Student Body (ASB) program, pursuant to which student organizations were recognized by the district and received certain benefits. Originally, FCA received its ASB recognition in the early 2000s.


FCA’s Statement of Faith was brought to the attention of a high school teacher who was also a member of the school’s Climate Committee. The teacher posted the Statement of Faith on his classroom whiteboard with the opinion he was “deeply saddened that a club [at the high school] ask[ed] its members to affirm these statements," but without considering its effect on FCA members who might be his students. A week later, the teacher forwarded the Statement of Faith to the high school principal, explaining he was particularly troubled by the notions that “God approves only of relationships between one man and one woman” and “God assigns our gender identities at birth.” These views, he felt, “infringe on the rights of [the LGBTQ+] community to feel safe and enfranchised on their own campus, even infringing on their very rights to exist,” adding he “object[ed] strenuously to the love the sinner, hate the sin mentality held by some Christians, which conflicted with his truth … [that] being LGBTQ+ is not a choice, it’s not a sin.” The controversy was reviewed by the high school’s entire Climate Committee, another member of which opined, “Even with the Biden win, millions of people voted for the real devil. And, evangelicals, like FCA, are charlatans and not in the least bit Christian based or they conveniently forget what tolerance means … They choose darkness over knowledge and they perpetuate ignorance.”


The upshot was the school district's decision to revoke FCA’s ASB status on the grounds the Statement of Faith violated the school district’s anti-discrimination policy. Even after losing its ASB status, FCA was still permitted to exist on campus, presumably under the Equal Access Act (EAA).[1] Significantly, however, the high school and the school district permitted several other student groups to maintain ASB status even though they limited their membership to one sex or one political party. On this point, the Court identified the following student groups: Big Sisters/Little Sisters, Girls who Code, Senior Women of Leland High School, and the Republican Student Club. However, even after FCA lost its ASB status, its mere continued existence caused consternation among high school staff. The teacher who had identified the FCA issue in the first place emailed the Climate Committee expressing his “eager[ness] … for the committee to talk about next steps [regarding FCA]” as he thought the school district’s sexual harassment policy “could be used in this situation” and was “an avenue [the Climate Committee] could pursue!” Separately, the faculty advisor to the ASB-approved Gay-Straight Alliance (GSA) “lamented it was unfortunate that there is an organization on campus that propounds a hurtful message.” She urged students to “rally against the issue” to “create change on campus.” Students responded to this call-to-action by protesting every FCA meeting for the rest of the school year. The student protests were attended by another GSA faculty advisor, who claimed students were trying “to create a safer and more accepting community for all students, which necessitates that FCA not hold events on campus or reassess their … [S]tatement of [F]aith.” On one occasion the student protesters tried to enter an FCA meeting but were blocked by campus police. At another meeting, reporters from the school newspaper took rapid-fire photos of every student that talked at the meeting, sticking the camera about five feet from their faces.


FCA sued and, after discovery was completed, moved for a preliminary injunction declaring that the school district’s decision revoking their ASB status violated the Free Expression Clause of the First Amendment. The district court denied their request and FCA appealed. The Ninth Circuit reversed, in a 2-1 decision, and remanded the case for entry of a preliminary injunction against the school district. The basis of the Ninth Circuit’s decision was the selective way the school district enforced its anti-discrimination policy among student organizations. Religious organizations were debarred because they required their leaders, though not their members, to affirm certain religious beliefs. Secular groups, on the other hand, were permitted to totally exclude students based on sex or political affiliation. One judge wrote separately to highlight the depth of animus against the FCA’s religious beliefs and to explain why it was another reason the school district violated the Free Exercise Clause. The dissenting judge would have held the FCA lacked standing to sue.


Author's Note. This blog has reported several recent cases in which the Supreme Court and lower courts have taken the government to task for infringing on religious liberty. The moral is that the government, in general, and school districts, in particular, may wish to be more careful about this issue. This article provides more detail about the facts of the case than is typically reported here. This is so readers may reflect on the educational purpose, if any, of school district employees interjecting personal religious and political views into classrooms populated by the diverse students who attend American public schools and, absent affordable alternatives, are required to do so by law. To this point, it is worth remembering that it was not so long ago that many school districts and educators were willing to endorse or tolerate discrimination against the very same group of students who were so aggressively supported in this case. And while it is true and good that LGBTQ+ students are more comfortable in public schools than ever, it is just as important to bear in mind that their rights do not trump the constitutional protection afforded religious liberty.

[1] Ironically, readers may remember it was not that long ago that organizations like the Gay-Straight Alliance used the EAA to maintain their presence on campus when morays were different and they were the victims of blatant discrimination.