Christian athletes fight for right to be on campus
An appeals court considers whether a school discriminated against Fellowship of Christian Athletes
A lawyer for a Fellowship of Christian Athletes student chapter at a high school in San Jose, Calif., asked a three-judge federal appeals court last Tuesday to allow the group back on campus prior to the start of the 2022-2023 school year later this month.
Pioneer High School ejected the FCA after it declined to sign a nondiscrimination form required by the school that would have required the club to open its leadership to students who would not sign its statement of faith. That followed comments by a teacher criticizing the group because of its belief in Biblical marriage—including that the “views needed to be barred from a public high school campus” and that “attacking these views” was necessary to have a “better campus.”
In June, a lower court sided with the school district, finding that the school’s policy was “content-neutral because it does not preclude religious speech but rather prohibits acts of discrimination.”
Yet Becket Fund attorney Daniel Blomberg, arguing on behalf of the FCA, took issue with the school’s argument that it was treating all student groups the same. Blomberg contended that what the school called an “all-comers” policy—that is, a policy that every student group admit all students into membership and leadership—was “in fact a some-comers policy that favors secular groups.”
At the heart of Blomberg’s argument was a bipartisan-supported 1993 federal law, the Equal Access Act, which prohibits school districts from derecognizing clubs “on the basis of their religious, political, philosophical, or other content of their speech.” Blomberg also argued that the law was subject to strict scrutiny—the highest level of review by a court—because it was not neutral and generally applicable. In short, because the school permitted exceptions to its alleged all-comers policy, it subjected itself to heightened scrutiny.
In oral arguments, at least two of the judges from the 9th U.S. Circuit Court of Appeals seemed to struggle with the school district’s argument that all student groups were actually required not to discriminate. “As a practical matter, it seems, Big Sister Little Sisters is intended for females,” Circuit Judge Kenneth Lee, an appointee of former President Donald Trump, said. He pointed to a commonsense application: “It really doesn’t make sense to have boys saying ‘I’m going to mentor a female student.’”
Circuit Judge Danielle Forrest, after pointing to other club charters that clearly employed discriminatory criteria and yet were approved, questioned the school attorney’s position that the district had applied its policy evenhandedly. That was buttressed by an FCA brief, which pointed to a variety of ethic- and sex-based programs such as the “Latino Male Mentor Group” and Leland High School’s “Mr. GQ” contest, as well as a district policy to discriminate based on race to employ a quota of “educators of color” and other demographics.
“I find that hard to swallow,” said Forrest, shaking her head. “The school district’s intent was to make sure nondiscrimination happened and that everybody was welcome all along, and yet they didn’t actually do anything to make sure that was happening”—which may imply that the school was unconstitutionally targeting the FCA’s religious views.
A post-hearing exchange of letters with the court seemed to suggest the school’s attorney was concerned about her client’s practice of allowing some clubs to discriminate. Becket’s Blomberg pointed out that while the Senior Women club signed the nondiscrimination form, it added that the club was limited to “seniors who identify as female”—meaning the club was not open to all comers.
“Blanks [in the nondiscrimination form] are provided to invite clubs to impose membership criteria, and students from some groups (though not FCA) are allowed to use them and still get approved,” wrote Blomberg, adding, “The problem here is not bureaucratic error, but rather a practice of systemically favoring popular groups.”
Without action by the court, the FCA club, which has approximately 100 members, will not be allowed to meet on campus. FCA asked the court to temporarily allow it back at school by the first of this week, but the court issued no ruling on Monday.
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