Christian student group unwelcome in San Jose, Calif., schools

A federal judge last Wednesday upheld a California school district’s 2019 decision to withdraw official recognition of a Fellowship of Christian Athletes student club because it required club leaders to affirm its statement of faith.

For over a decade, student-led FCA clubs met at San Jose’s Pioneer High School for testimony, prayer, and Bible study. In May 2019, two weeks after a Pioneer teacher criticized the group in his classroom for its beliefs, including its belief in Biblical marriage, school officials kicked the club off campus. Eventually all three FCA student clubs in the San Jose Unified School District were ejected—allowed to meet but unable to enjoy the same privileges as recognized student groups. Meanwhile, a Satanic Temple student club was given official recognition.

In April 2020, FCA challenged the school district’s decision in a lawsuit filed in federal court. The ministry, represented in court by the Center for Law and Religious Freedom and the Becket Fund, argued that the school district’s action violated the 1984 Equal Access Act, a federal law protecting student meetings and prohibiting schools from barring such meetings on the basis of religious, political, philosophical, or other speech content. FCA also contended that the school district’s action violated students’ constitutional free speech and religious liberty rights.

In Wednesday’s opinion, U.S. District Judge Haywood Gilliam, an Obama appointee, ruled that the school district’s nondiscrimination policy—one that would have required FCA to open club leadership to students who engage in homosexual behaviors—was “content-neutral because it does not preclude religious speech but rather prohibits acts of discrimination.”

The judge also found no evidence that other clubs discriminated, even though they had titles suggesting otherwise—like Girls Who Code and Big Sister/Little Sister Club. Gilliam admitted there was “tension” in contradictory statements by a Senior Women club that “its members are ‘students who are seniors who identify as female,’ but also that ‘[a]ny currently enrolled student in the School shall be eligible for membership.’” Yet Gilliam found no evidence the policy had been violated.

Not so with FCA. “Requiring leaders to swear that their religious beliefs are the same as those described in the FCA’s Statement of Faith and further requiring them to comply with the Sexual Purity Statement that says sex can only occur between a married man and woman does violate the Policy’s prohibition on ‘leadership criteria that excludes any student based on . . . religion . . . [or] sexual orientation,” concluded Gilliam.

That result seems in conflict with federal appeals court rulings last year that upheld the right of college campus ministry InterVarsity to limit student leadership of its university fellowship groups to students who agree to the ministry’s statement of faith. A unanimous three-judge panel of the Eighth U.S. Circuit Court of Appeals ruled that the University of Iowa violated InterVarsity’s free speech rights when it deregistered the group, causing it to lose access to student activity funds and campus meeting places.

With InterVarsity, the court found that the school exempted some groups—like fraternities, sororities, and a gay-affirming group called LoveWorks—from the nondiscrimination policy, but not InterVarsity and other religious groups. On its face, the San Jose policy exempts no student groups from the nondiscrimination policy, yet in practice, attorneys argue, student groups do exclude students based on multiple factors, including GPA and sex.

The school district argues the case is like the Supreme Court’s much-criticized 2010 ruling in Christian Legal Society v. Martinez, in which the court upheld an “all-comers” policy at the University of California, Hastings College of Law. A majority opinion by Justice Ruth Bader Ginsburg rejected the Christian Legal Society’s argument that it did not restrict membership based on sexual orientation but based on conduct—enaging in sex outside Biblical marriage—or belief that such the conduct is permissible.

Yet FCA attorneys argue that the San Jose school district’s policy is not really an “all-comers” policy but an “all-comers-we-approve” policy—one that violates the First Amendment.

For now, FCA will remain off the San Jose school campuses as an appeal of the ruling, filed Monday, proceeds.